PPT definition assignment

M ASS I N C A R C E R AT I O N I N T H E

AG E O F CO LO R B L I N D N E SS

N E W Y O R K T I M E S B E S T S E L L E R

MICHELLE ALEXANDER W I T H A N E W P R E F A C E B Y T H E A U T H O R

T H E

N E W

J I M

C R OW

10th ANNIVERSARY

EDITION

Seldom does a book have the impact of The New Jim Crow. Since it was fir t published in 2010, it has been the winner of numerous

awards and has spent nearly 250 weeks on the New York Times bestseller

list. It has been cited in judicial decisions, read in countless faith-based

and secular book clubs, and adopted in campus-wide and community-wide

reads. Most important, it has inspired artists, philanthropists, policymak-

ers, community leaders, and a whole generation of racial justice activists

motivated by Michelle Alexander’s searing indictment of our criminal jus-

tice system and her unforgettable argument that “we have not ended racial

caste in America; we have merely redesigned it.”

Called “stunning” by Pulitzer Prize–winning historian David Levering

Lewis, “invaluable” by the Daily Kos, “explosive” by Kirkus Reviews, and

“profoundly necessary” by the Miami Herald, The New Jim Crow has been

deemed “undoubtedly the most important book published in this century

about the U.S.” (The Birmingham News).

The New Press is now proud to issue a tenth-anniversary edition with

a new preface by Michelle Alexander discussing all that has changed and

remained the same in our criminal justice system, and our democracy as a

whole, since she published this book a decade ago.

“Devastating.” —Forbes

“The bible of a social movement.” —San Francisco Chronicle

“An instant classic.” —Cornel West

“An extraordinary book.” —Marian Wright Edelman

Current Affairs/Criminal Justice $18.99 U.S.

www.thenewpress.com

Cover photograph by iStock Cover design by Christopher Moisan

T H

E N

E W

J IM

C R

O W

M IC

H E

L L

E

A L

E X

A N

D E

R

5.5 × 8.5 SPINE: 1.0625 FLAPS: 0

New Jim Crow_10th_PB coverb.indd 1 11/13/19 3:59 PM

Michelle Alexander is a highly acclaimed civil rights lawyer,

advocate, and legal scholar. She has served as an associate profes-

sor of law at Stanford Law School and the Moritz College of Law

at The Ohio State University. Throughout her legal career, she has

won numerous awards and fellowships, including being named a

Soros Justice Fellow and a Senior Fellow for the Ford Foundation.

Prior to joining academia, Alexander engaged in civil rights litiga-

tion in both the private and nonprofit sectors, ultimately serving

as the director of the Racial Justice Project for the ACLU of North-

ern California, where she helped to launch a national campaign

against racial profiling. Currently, she is a visiting professor at

Union Theological Seminary and a contributing opinion writer

for The New York Times.

Alexander is a graduate of Stanford Law School and Vanderbilt

University. She has clerked for Justice Harry A. Blackmun on the

U.S. Supreme Court and for Chief Judge Abner Mikva on the D.C.

Circuit of the U.S. Court of Appeals and has appeared as a com-

mentator on CNN, MSNBC, NPR, and Democracy Now! among

other media outlets. The New Jim Crow is her first book. For more

information, visit www.newjimcrow.com.

Royalties from the publication

of the 10th anniversary edition of The New Jim Crow

will be donated to organizations courageously working

for racial justice and the liberation of all

For information regarding supported organizations

and to donate directly to the MOSAIC Fund for Justice

please go to newjimcrow.com/donate

T HE N E W J IM   C ROW Mass Incarceration in the

A ge of Colorblindness

T E N T H A N N I V E R S A R Y E D I T I O N

M I C H E L L E A L E X A N D E R

For Nicole, Jonathan, and Corinne

Contents

Preface to the Tenth Anniversary Edition ix

Foreword by Cornel West xlvii

Preface li

Introduction 1

The Rebirth of Caste 25

The Lockdown 75

The Color of Justice 121

The Cruel Hand 175

The New Jim Crow 221

The Fire This Time 275

Acknowledgments 327

Notes 331

Index 365

Preface to the Tenth Anniversary Edition

Ten years have passed since The New Jim Crow was first published. It has been an astonishing decade. Everything and nothing has changed.

When I was researching and writing the book, Barack Obama had

not yet been elected president of the United States. I was in disbelief

that our country would actually elect a black man to be leader of the

so-called free world. As the election approached, I felt an odd sense of

hope and dread. I hoped against all reason that we would actually do

it. But I also knew that, if we did, there would be a price to pay. Every-

thing I knew about this country through experience and study told me

that we, as a nation, did not fully understand the nature of the moment

we were in. We had recently birthed another caste system—a system of

mass incarceration—that caged millions of poor people and people of

color and relegated millions more to a permanent second-class status.

Yet we were in deep denial that a new system of racial and social con-

trol existed, and most of us—even those who cared deeply about racial

justice—did not seem to understand that powerful racial dynamics

and political forces were at play that made much of our racial prog-

ress illusory. We had not faced our racial history and could not tell

the truth about our racial present, yet growing numbers of Americans

wanted to elect a black president and leap into a “colorblind” future, a

x P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

place where rhetoric of “hope and change” might be enough to carry

us to some promised land.

I stood in line with hundreds of others to cast my ballot in early

voting. I remember the jubilance in the air, black people smiling and

nodding at each other. Parents brought their children to the voting

booth to watch them cast what they hoped would be an historic vote. I

wanted Barack Obama to win. And I feared it. I worried that, if a black

man were elected president of the United States, our nation would sink

further into denial, and no one would listen to the message that I felt

desperate to convey: We are not free of our racial history. To the con-

trary, a new caste system has been born again in America, a system of

mass incarceration unlike anything the world has ever seen. We are

not saved.

I was right to worry.

Many people assume that The New Jim Crow was an instant best-

seller. Quite the opposite is true. The book did not hit the bestseller

lists until it was released in paperback—two years after the original

publication date. I spent those early years traveling from coast to coast

begging people to listen, speaking in half-empty church basements

and to small groups of activists and students. The book was first pub-

lished in January 2010, one year after President Obama’s inauguration.

It was a time when our country was awash in “post-racialism.” Black

History Month events revolved around “how far we’ve come.” Many

in the black community and beyond felt that, if Obama could win the

presidency, anything was possible. Acknowledgments were made that

much work remained to be done, yet a mantra emerged: “We’ve come a

long way, and still have a long way to go. But we’re on the right track.”

Few people wanted to hear that, despite appearances, since the end of

slavery our nation has remained trapped in a cycle of reform, backlash,

and reformation of systems of racialized social control.

Things have changed since then. As I write this, Donald Trump

is president of the United States. For many, this feels like whiplash.

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x i

After eight years of Barack Obama in the White House—a man who

embraced the rhetoric (though not the politics) of the Civil Rights

Movement—we now have a president who embraces the rhetoric and

the politics of white nationalism. This is a president who openly stokes

racial animosity and even racial violence, who praises dictators (and

likely aspires to be one), who behaves like a petulant toddler on Twit-

ter, and who has a passionate, devoted following of millions of people

who proudly say they want to “make America great again” by taking

us back to a time that we’ve left behind. We are now living in an era of

unabashed racialism, a time when many white Americans feel free to

speak openly of their nostalgia for an age when their cultural, politi-

cal, and economic dominance could be taken for granted—no apolo-

gies required. It can no longer be denied that the colorblind veneer of

early twenty- first- century American democracy was just that: a veneer.

Right beneath the surface lay an ugly reality that many Americans

were not prepared to face.

In so many respects, this book was written in a different world. It

was written before a seventeen-year-old black teenager named Tray-

von Martin was killed in a gated community by a self- appointed

“neighborhood watchman” named George Zimmerman. Zimmerman’s

acquittal for Martin’s murder ignited demonstrations in cities across

the country and inspired three black women to launch the hashtag

# BlackLivesMatter—a simple declaration that would rock the nation

and be heard around the globe.

The New Jim Crow was also written before police killings of unarmed

black people became a regular staple of the daily news. It was before

Eric Garner was choked to death, on video, by a police officer in New

York who wanted to arrest him for selling loose cigarettes; before

twelve-year-old Tamir Rice was killed in a park by Cleveland police

officers within moments of their arrival where the child was playing;

before John Crawford was shot and killed by police while he was shop-

ping in a Walmart in Ohio; before Kajieme Powell was shot down by

x i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

police while holding a butter knife; before a Chicago police officer fired

sixteen shots into Laquan McDonald’s back; before another Chicago

cop shot Rekia Boyd; before Freddie Gray was killed, his spinal cord

severed in the back of a Baltimore police van; before Atatiana Jeffer-

son was shot to death by a police officer from outside her bedroom

window in Fort Worth, Texas. It was before Sandra Bland died in a

Texas jail after being arrested for not using her turn signal, and before

Kalief Browder committed suicide after being imprisoned and abused

at Rikers Island for three years, unable to make bail, after being falsely

accused of stealing a backpack. This tragic list could go on.

Most importantly, this book was written before the uprisings. It was

written before Michael Brown was shot down by the police, and the

town of Ferguson, Missouri, courageously rose up. Every system of

injustice depends on the silence, paralysis, confusion, and cooperation

of those it seeks to eliminate or control. When the people of Ferguson

stood up to the police violence, harassment, and abuse their commu-

nity had endured for decades and remained standing even as the tanks

rolled in, everything changed.

A wave of racial justice protest and activism swept across this

nation, electrifying the country and much of the world. Bold, coura-

geous racial justice movements burst onto the scene, radically altering

the terms and boundaries of our nation’s political debates and forcing a

conversation about our racial history, our racial present, and our racial

future that was long overdue—a conversation that rightfully places

criminal injustice at its center rather than at its margins.

I did not, and could not, know when writing this book that our

nation would soon awaken violently from its brief colorblind slumber.

In the final chapter, I did predict that uprisings were in our future,

and I wondered aloud what the fire would look like this time. What

actually occurred in the years that followed was, to paraphrase James

Baldwin, more terrible and more beautiful than I could have imagined.

We now have white nationalist movements operating openly online

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x i i i

and in many of our communities; they’re celebrating mass killings and

recruiting thousands into their ranks. We have a president who routine-

ly unleashes hostile tirades against black and brown people— calling

Mexican migrants “murderers,” “rapists,” and “bad people,” referring

to developing African nations as “shithole countries,” and smearing

the majority- black city of Baltimore as a “disgusting, rat and rodent

infested mess.” Millions of Americans are cheering, or at least tolerat-

ing, these racial hostilities. And yet, in the midst of all of this, we also

have vibrant racial justice movements led by new generations of activ-

ists who are working courageously at the intersections of our systems

of control, as well as growing movements against criminal injustice

led by those who are directly impacted by mass incarceration. Many

of these movements aim to redefine the meaning of justice in America.

A decade ago, much of this progress seemed nearly unimaginable.

When this book was first released, there was relatively little racial

justice organizing, and “mass incarceration” was not a widely used

term. Back then, the Congressional Black Caucus, as well as most civil

rights organizations, did not include criminal justice issues among its

top priorities. Little funding could be found for work challenging the

enormous punishment bureaucracy controlling communities of color.

The rare mainstream voices calling for reform were usually academics

or policy “experts.” Those most impacted by police violence and the

disastrous War on Drugs were rarely seen or heard in political debates.

Today, there is bipartisan support for some prison downsizing,

and hundreds of millions of philanthropic dollars have begun to flow

toward criminal justice reform. A vibrant movement led by formerly

incarcerated and convicted people is on the rise—a movement that

has challenged or repealed disenfranchisement laws in several states,

mobilized in support of sentencing reform, and successfully organized

to “ban the box” on employment applications that discriminate against

those with criminal records by asking the dreaded question: “Have you

ever been convicted of a felony?” Promising movements for restorative

x i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

and transformative justice have taken hold in numerous cities. Cam-

paigns against cash bail have gained steam. Marijuana legalization has

swept the nation, with fifteen states having decriminalized or legal-

ized cannabis since 2010. And this book, which some predicted would

never get an audience, wound up spending 246 weeks on The New York

Times bestseller list and has been used widely by faith groups, activ-

ists, educators, and people directly impacted by mass incarceration

inside and outside prisons. Over the past ten years, I’ve received thou-

sands of letters—and tens of thousands of emails—from people in all

walks of life who have written to share how the book changed them or

how they have used it to support consciousness-raising or activism in

countless ways.

Everything has changed. And yet nothing has.

The politics of white supremacy, which defined our original consti-

tution, have continued unabated—repeatedly and predictably engen-

dering new systems of racial and social control. Just a few decades

ago, politicians vowed to build more prison walls. Today, they promise

border walls. As the first chapter of this book describes, the political

strategy of divide, demonize, and conquer has worked for centuries in

the United States—since the days of slavery—to keep poor and work-

ing people angry at (and fearful of) one another rather than uniting to

challenge unjust political and economic systems. At times, the tactics

of white supremacy have led to open warfare. Other times, the divi-

sions and conflicts are less visible, yet lurk beneath the surface.

At the time I was writing this book, a war was being waged on com-

munities of color, yet few could see it for what it was. The politics of

white supremacy had been driven temporarily underground. Today,

racial bigotry, fear mongering, and scapegoating are no longer subter-

ranean in our political discourse; the dog whistles have been replaced

by bullhorns. But contrary to what many people would have us believe,

what our nation is experiencing today is not an “aberration.” The poli-

tics of “Trumpism” and “fake news” are not new; they are as old as

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x v

the nation itself. The very same playbook has been used over and over

in this country by those who seek to preserve racial hierarchy, or to

exploit racial resentments and anxieties for political gain, each time

with similar results.

Back in the 1980s and 90s, Democratic and Republican presidents

leaned heavily on racial stereotypes of “crack heads,” “crack babies,”

“super- predators,” and “welfare queens,” to mobilize public support

for the War on Drugs, a “get- tough” movement, and a prison- building

boom. Today, the rhetoric has changed, but the game remains the same.

As I recently wrote in the introduction to the Spanish- language ver-

sion of this book, public enemy number one in the 2016 election was

a brown- skinned immigrant, an “illegal,” a “terrorist,” or a “caravan”

full of people who want to take your job, rape your daughter, or com-

mit an act of terror. As Trump put it: “When Mexico sends its people,

they’re not sending their best. They’re sending people that have lots of

problems, and they’re bringing those problems. . . . They’re bringing

drugs. They’re bringing crime. They’re rapists.” He promised to solve

this imaginary crisis through mass deportation and building a wall

between the United States and Mexico. He also insisted that his politi-

cal opponent, Hillary Clinton, wanted “millions of illegal immigrants

to come in and take everybody’s jobs.” And he blamed domestic terror

attacks in New Jersey and New York on “our extremely open immi-

gration system,” which, he argued, allows Muslim terrorists into our

country.

The fact that Trump’s claims were demonstrably false did not impede

his rise, just as facts were largely irrelevant at the outset of the War on

Drugs. It didn’t matter back then that studies consistently showed that

people of color and whites were equally likely to use and sell illegal

drugs. Black men were still labeled the enemy. Nor did it matter, when

the drug war was taking off, that nearly all the sensationalized claims

that crack cocaine was some kind of “demon drug,” drastically more

harmful than powder cocaine, were false or misleading. Black people

x v i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

charged with possession of crack in inner cities were still punished

far more harshly than white people in possession of powder cocaine

in the suburbs. And it didn’t matter that most welfare recipients were

white—not black—and that African Americans weren’t actually

taking white people’s jobs or college educations in significant numbers

through affirmative action programs. Getting tough on “them”—the

racially defined “others” who could easily be used as scapegoats and

cast as the enemy—was all that mattered. Facts were treated as largely

irrelevant then. As they are now.

Today, the stakes are as high as they’ve ever been. Nearly everyone

seems aware that our democracy is in crisis, yet few seem prepared to

reckon with the reality that removing Trump from office will not rid

our nation of the social and political dynamics that made his election

possible. No issue has proved more vexing to this nation than the issue

of race, and yet no question is more pressing than how to overcome

the politics of white supremacy—a form of politics that not only led to

an actual civil war but that threatens our ability ever to create a truly

fair, just, and inclusive democracy. We find ourselves in this dangerous

place not because something radically different has occurred in our

nation’s politics, but because so much has remained the same.

It is tempting, in view of all that has transpired over the past ten

years, to write an updated version of The New Jim Crow that would

account for all that has occurred. The new, revised version would

describe how and why our nation swung dramatically from what Marc

Mauer memorably termed “a race to incarcerate”—propelled by bipar-

tisan wars on “drugs” and “crime”—to a bipartisan commitment to

downsizing our prison system during the same period of time that a

liberal, black president drastically expanded the system of mass depor-

tation and mass surveillance.

In particular, the revised book would explore the opioid crisis and

marijuana legalization—specifically the many ways our drug policy

debates rapidly changed once drug addiction became perceived as a

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x v i i

white problem and wealthy white investors became interested in prof-

iting from the emerging legal cannabis industry. Many of the reversals

have been quite dramatic. For example, former Republican speaker of

the House of Representatives John Boehner stated in 2011 that he was

“unalterably opposed to decriminalizing marijuana” but by the end

of 2018, he had joined the board of directors of a cannabis company.

The revised book would also discuss the strengths, limitations, and

dangers of recent criminal justice reform efforts, such as the Trump

administration’s First Step Act, and it would reflect upon Obama’s

complicated legacy with respect to criminal justice reform. Obama

was the first sitting president to visit a federal corrections facility, the

first to oversee a drop in the federal prison population in more than

thirty years, and he granted clemency to nearly two thousand peo-

ple behind bars—the highest total for any president since President

Harry Truman. His administration enacted significant policy changes,

including, among others, legislation reducing sentencing disparities

involving crack and powder cocaine, a temporary ban on federal con-

tracts with private prisons, and limitations on the transfer of military

equipment to local police departments.

And yet, it sometimes appeared that Obama was reluctant to

acknowledge the depth and breadth of the structural changes required

to address police violence and the prevailing systems of racial and

social control. For example, when black Harvard professor Henry Lou-

is Gates was arrested in his own home for no reason, Obama respond-

ed to the national furor and media frenzy by inviting Gates and the

arresting officer to a “beer summit” at the White House to work things

out over drinks and peanuts, as though racial profiling is little more

than an interpersonal dispute that can be resolved through friendly

dialogue. Most troubling, the modest criminal justice reforms that

were achieved during the Obama administration coincided with the

expansion of the system of mass deportation. At the same time that the

administration was phasing out federal contracts for private prisons,

x v i i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

it was making enormous investments in private detention centers for

immigrants, including the granting of a $1 billion contract to Correc-

tions Corporation of America, the nation’s largest prison company, to

build a massive detention facility for women and children seeking asy-

lum from Central America.

The new, expanded version of this book would describe the relation-

ship between the politics of mass incarceration and mass deportation

and the role of prison profiteering in the expansion of these systems,

and it would demonstrate how predictable cycles of racial progress,

backlash, and reformation of systems of control continue to this day.

But telling the story of everything that has changed and remained the

same would require a new book entirely. There is no way to “update”

this book with new facts, data, and political context in a manner that

would do justice to the magnitude of what has occurred.

I hope, however, that The New Jim Crow will continue to be useful in

the years to come, as our nation is forced to reckon with racial realities

that it has long refused to face. In many respects, the core thesis of this

book is more relevant today than it was ten years ago. It is now easier

to see the patterns, the cycles, the predictable rhetoric, and the ways in

which systems of racial and social control adapt, morph, rebound, and

are reborn. Rather than attempt to rewrite this book for our present

moment, I will let it stand for the moment in which it was written—a

moment that has much to teach us about where we are and where we’re

headed if we fail to face our racial history, our racial present, and our

collective future with courage, honesty, and a fierce commitment to

honoring the dignity and value of us all.

The only major change to the original text relates to language. I’ve

eliminated terms such as felon, ex-offender, and inmate, except when

those labels or classifications are being explained or are relevant to

a point being made in the text. When I was researching and writing

the book, those terms were widely used by policymakers, journalists,

academics, and activists as they described and combatted the system of

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x i x

mass incarceration. In recent years, formerly incarcerated and convict-

ed people have challenged the use of these labels and offered alterna-

tives such as “returning citizen.” A similar effort has been under way

to persuade journalists and others to abandon use of the term illegals

to describe people who are in this country without proper documenta-

tion, and to use the term undocumented immigrant instead. Although

some have argued that it’s cumbersome to say “formerly incarcerated”

rather than “felon,” or inconvenient to say “a woman in prison” rath-

er than “inmate,” I do not see why anyone who values the dignity of

those who have been caged would complain about the “difficulty” or

“inconvenience” of uttering a few extra words to emphasize someone’s

humanity during the era of mass incarceration. There are many things

that are difficult to manage during this period of our nation’s history;

avoiding terms that reduce people to prison labels is not one of them.

Although I’ve chosen not to make other major changes to the text, I

do want to answer here a few of the most common questions that I’ve

been asked over the years as I’ve spoken in prisons and re- entry cen-

ters, colleges and universities, and at legal, faith, and activist gather-

ings. In most of these places, I’ve been asked some version of the same

three questions. They deserve a meaningful response.

Black Men

The first is: why focus on black men? This question is usually asked

by black women. They want to know what inspired me to write a book

specifically focused on the experience of black men in the War on

Drugs. Some women express deep gratitude for this approach. After

reading the book, they say, they were able to view their relationships

with their husbands, partners, fathers, uncles, brothers, cousins, and

sons through a different lens. One middle-aged black woman told me

through tears that she had not spoken to her father in more than thirty

years, but after reading this book she visited him in prison for the

x x P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

first time since childhood. She realized that she had blamed her father

for leaving her in her youth; the book helped her to see how his dis-

appearance was largely a product of forces and systems beyond his

control. Her experience is not unique. Over the years, many women

have shared with me that reading The New Jim Crow allowed them

to release some of the hurt and anger they felt toward black men in

their lives—men they felt had betrayed them by returning to prison

after promises not to do so, or who had failed to secure jobs or hous-

ing upon their release and were therefore unable to help support their

families. As one woman put it, “I’m still angry that he can’t seem to get

a good job, and that he’s been rearrested twice, and that I’m the one

who has to feed our kids and bail him out. But now I don’t just blame

him. I see this whole system is working to keep us down. And I want

to do something about it.”

Some women, however, have expressed concern that the book may

send the message to readers that the experience of women in the era of

mass incarceration is less important or less worthy of public concern.

It is certainly understandable why some would feel this way. In recent

years, the overwhelming majority of funding and media attention has

flowed toward addressing police killings of unarmed black men and

their staggering incarceration rates; relatively little attention has been

paid to the experience of black women.

I chose to focus on the experience of black men at a time when little

attention was paid to the devastating impact of the drug war on black

communities. I was inspired to write the book due to my experiences

as a civil rights lawyer at the ACLU of Northern California, in the

late 1990s and early 2000s, investigating patterns of drug law enforce-

ment in communities of color and representing victims of racial profil-

ing. The overwhelming majority of those who contacted my office to

report being stopped, frisked, searched, or brutalized by the police

were black men. When I began researching and writing this book, the

number of people in prisons and jails for drug offenses had increased

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x i

more than 1,000 percent in thirty years, and black men were being

swept into the system for minor drug crimes at grossly disproportion-

ate rates. Stunningly, one in three black men had a felony record in

2010 and it was predicted that if current trends continued, one in three

black men would spend time in prison and the vast majority would

acquire a criminal record during their lifetime. It seemed reasonable

to me back then to focus on those who had been the primary targets

of the war and whose experience I knew best. In the introduction, I

acknowledged the limitations of my approach and urged other scholars

and advocates to pick up where I left off.

In recent years, I’ve been thrilled to see the extraordinary activism

and scholarship of those who have worked to move the experience of

women in the era of mass incarceration from the margins to the center.

Books such as Andrea Ritchie’s Invisible No More: Police Violence Against

Black Women and Women of Color and Becoming Ms. Burton: From Pris-

on to Recovery to Leading the Fight for Incarcerated Women by Susan

Burton have made invaluable contributions to movements challenging

criminal injustice. Campaigns such as #SayHerName have challenged

the erasure of women’s experience from media coverage and advocacy

regarding police violence. Groundbreaking advocacy by organizations

including A New Way of Life, BYP100, Families for Justice as Healing,

and Essie Justice Group have begun to reshape the narrative, expos-

ing the ways in which mass incarceration has a devastating impact on

women and their families—and by extension, their communities.

Although men continue to comprise 90 percent of the prison popu-

lation, women’s incarceration has increased 800 percent over the past

thirty years, and the incarceration rate for black women is double that

of white women. Today, women are more likely than men to be impris-

oned for drug- related offenses—a particularly troubling reality given

that 62 percent of incarcerated women have minor children, many of

whom are forced into foster care or left with relatives who scarcely

have the means to care for them. The separation of families is now

x x i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

widely understood as a human rights crisis at the border, yet compara-

tively little attention has been paid to the destruction of black families

in the era of mass incarceration. One in four women in the United

States has a loved one behind bars, and the figure is one in two for

black women. When men are locked up, the women who love them

are sentenced too—to social isolation, depression, grief, shame, cost-

ly legal fees, far-away prison visits (often with children in tow), and

the staggering challenges of helping children overcome the trauma of

parental incarceration. When loved ones are released from their cages,

it is often women who are faced with the daunting task of supporting

them as they struggle and often fail in a system rigged against them.

Violence

The second question that I’m frequently asked is: what about violent

crime? I expected this query. While the book discusses violent crime

in several places, I chose to focus my attention on the exponential

increase in arrests, prosecutions, and sentences for nonviolent crimes

and drug offenses. I briefly considered devoting a full chapter to vio-

lent crime and its relationship (or lack thereof) to the birth of this sys-

tem but ultimately decided against it. My reason was simple: I thought

the time was overdue for public attention to be focused on state vio-

lence, rather than violence committed by individuals in impoverished,

segregated communities suffering from economic collapse.

For decades, the media had been awash in stories about violence in

ghettoized communities, portraying those communities as nothing but

drug-infested war zones. The “super-predator” myth—the false notion

that a generation of young black men “with no conscience, no empa-

thy” were rising up to terrorize the nation—still held sway politically.

The official, bipartisan consensus was that black incarceration rates

were skyrocketing because black people had stunningly high rates of

drug addiction and violent crime. This was not only a highly distorted

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x i i i

telling of the story; it seemed to be the only version of the story that

mainstream audiences were willing to hear.

In my experience, whenever activists— especially black activists—

challenged discriminatory or abusive policing or questioned state and

federal budgets that shifted billions of dollars away from education, pub-

lic housing, welfare, or drug treatment to brand-new, high-tech prisons,

someone would inevitably interrupt the conversation to raise the subject

of violent crime— especially “black-on- black crime.” This discursive

maneuver was often performed casually in an offhand manner; yet it

proved to be a stunningly effective way of refocusing attention on a rela-

tively small number of individuals who cause harm, thus shielding from

critique an entire system that inflicts incalculable harm on millions.

When I sat down to write The New Jim Crow, I wanted to expose

the literal war that has been waged against our communities, a drug

war in which millions were taken prisoner and tens of millions were

criminalized, placed on probation or parole, and then released into

a permanent second- class status often for simple possession of mari-

juana or some other drug for personal use. It had become abundantly

clear to me that, so long as public attention remained focused on vio-

lent crime, the racial politics that led to the drug war and its conse-

quences would remain largely invisible, even to those who claimed to

care. I believed the time was overdue to move the conversation away

from violence committed by individuals struggling to survive and

direct public attention to organized violence perpetrated by our own

government against black people— violence that has remained fairly

constant, merely changing forms throughout our nation’s history. This

book was my chance, finally, to change the subject.

I also believed—and I still believe—that the prevailing view that

mass incarceration has been driven by arrests and convictions for vio-

lent crime is simply wrong. It is a lie that has been invoked to excuse

and rationalize the intentional infliction of suffering on millions of peo-

ple. The truth is that the overwhelming majority of people sentenced

x x i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

to prisons and jails, as well as those placed on probation or parole,

have been convicted of nonviolent crimes, especially drug offenses.

This was true when I published the book and it remains true today.

In 2010, the FBI reported that the “highest number of arrests were for

drug abuse violations,” followed by arrests for driving under the influ-

ence and larceny-theft. Even if the analysis is limited to felonies—thus

excluding extremely minor crimes and misdemeanors—nonviolent

offenses predominate. Only about a quarter of felony defendants in

large urban counties were charged with a violent offense in 2006, the

most recent year for which prison admission data was available when

I published the book. Today, it remains the case that the overwhelm-

ing majority of people swept into the system of mass incarceration

are charged with nonviolent crimes and drug offenses. In 2019, data

reported by the Vera Institute of Justice revealed that police make

more than 10 million arrests each year, but only 5 percent of those

arrests are for violent offenses—ranging from schoolyard fist fights

to armed robbery to homicide. Drug crimes remain the largest cat-

egory of arrests. According to the Pew Research Center, eight out of ten

people on probation and two-thirds of the people on parole have been

convicted of nonviolent crimes.

In recent years, however, some have questioned my insistence

that arrests and convictions for nonviolent offenses, particularly

drug offenses, have been the primary driver of mass incarcera-

tion. They point out that the majority of people in state prisons

today—52 percent—have been convicted of violent offenses. This sta-

tistic is typically treated as a bombshell revelation. How can I argue,

they say, that the drug war has been the single greatest contributor to

mass incarceration when most people in prison have been convicted

of violent crimes?

There is an easy answer to this question, but I’ve come to realize that

the original edition did not do enough to demystify prison statistics.

The reality is this: the fact that half of a state’s prison population is

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x v

comprised of people labeled violent offenders does not mean that half

of the people sentenced to prison in that state have been convicted of

violent crimes. This may seem confusing or counterintuitive at first,

but if you pause to consider how the system actually operates, this fact

becomes obvious. People who are convicted of violent crimes tend to

get longer prison sentences than those who commit nonviolent offens-

es. As a result, people who are classified as violent offenders comprise

a much larger share of the prison population than they would if they

had shorter sentences.

A hypothetical scenario may help here. Picture in your mind a

prison hallway lined with cells (ten on each side) that are occupied

by people for varying lengths of time. Imagine that each cell holds

two people. One side of the hallway is reserved for people who have

been convicted of drug or property crimes and who have relatively

short sentences of five years or fewer. The other side of the hallway

is reserved for people who have been convicted of violent crimes and

sentenced to long mandatory minimums (ten years or more) or life

imprisonment. During a single decade, more than a hundred people

could cycle in and out of the cages reserved for those convicted of

nonviolent crimes, while the same twenty people who are locked up

for violent crimes on the other side of the hallway would remain in

place. At any given moment, if you were to snap a picture of that hall-

way, half of the people living in cages would be classified as “violent

offenders.” But this picture would wildly distort your understanding

of the population who had been sentenced to prison during the past

ten years. Although prison hallways are not segregated in this fash-

ion, some version of this dynamic occurs in prisons across America,

resulting in prisons that are half- filled with people convicted of violent

crimes, even though most people sentenced to prisons and jails have

been convicted of lesser offenses.

Nevertheless, many politicians, law enforcement officials, journal-

ists, and some academics continue to create the false impression that

x x v i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

most people sent to prisons or jails, or labeled criminals or felons, have

been convicted of violent crimes. They point to the current composi-

tion of state prisons as “proof” of this imagined fact, ignoring that

sentencing practices distort our understanding of who is sent to prison

and why. The lie that most people sent to prison are “violent offenders”

is dangerous because it perpetuates the false notion that our system

of mass incarceration is primarily concerned with violence and that

it is well designed to keep communities safe. In fact, our system is

primarily concerned with the perpetual control and marginalization

of the dispossessed; it is not designed to respond meaningfully to the

harms of violence—a reality powerfully described in Danielle Sered’s

recent book, Until We Reckon: Violence, Mass Incarceration, and a Road

to Repair. Sered shows through her research, as well as stories drawn

from her restorative justice program Common Justice, how the system

of mass incarceration multiplies, rather than remedies, the harm of

violent crime.

When I explain these realities to those who question my emphasis

on nonviolent drug offenses, some people still insist that the impact of

the drug war is overblown because people convicted of drug offenses

comprise a minority of those locked in state prisons. They point out

that, even if we released everyone locked up on drug charges, most

people in state prisons would still be there. This, of course, is true, but

that observation misses one of the key points of the book.

One of the main reasons I wrote The New Jim Crow was because I was

deeply concerned that few people seemed to understand that the sys-

tem of mass incarceration extends far beyond prison walls—shaming,

stigmatizing, and controlling people whether or not they’ve actually

spent time behind bars. In this way, the system functions much more

like a caste system than a system of crime prevention or control. In the

introduction, I was careful to define “mass incarceration” to include

those who were subject to state control outside of prison walls, as well

as those who were locked in literal cages. I wrote:

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x v i i

It may be helpful, in attempting to understand the basic

nature of the new caste system, to think of the criminal

justice system—the entire collection of institutions and

practices that comprise it—not as an independent system

but rather as a gateway into a much larger system of racial

stigmatization and permanent marginalization. This larger

system, referred to here as mass incarceration, is a system

that locks people not only behind actual bars in actual pris-

ons, but also behind virtual bars and virtual walls— walls

that are invisible to the naked eye but function nearly as

effectively as Jim Crow laws once did at locking people of

color into a permanent second- class citizenship. The term

mass incarceration refers not only to the criminal justice

system but also to the web of laws, rules, policies, and

customs that control those labeled criminals both in and

outside of prison. Once released, former prisoners enter a

hidden underworld of legalized discrimination and perma-

nent social exclusion. They are members of America’s new

undercaste. (Emphasis in original.)

I offered this definition of mass incarceration at the outset in an effort

to make clear that my concern was not limited to those behind bars

at any given moment; rather, I was concerned with the emergence of

a system that brands people, often at very young ages, as “criminals”

and then ushers them into a parallel social universe in which they

may be denied the right to vote and be subject to legal discrimination

in employment, housing, and basic public benefits for the rest of their

lives. Throughout the book, I repeatedly stated that it is the “prison

label, not the prison time” that matters most if we are to understand

the true scope and impact of mass incarceration. An arrest (even with-

out a conviction) can have serious consequences, and a criminal con-

viction of any kind—even if probation rather than imprisonment is

x x v i i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

imposed—can relegate someone to a permanent second-class status.

I aimed to help readers see that entire communities defined by race

and class have been criminalized. Millions are now subject to legal

discrimination and varying forms of control—locked in and locked

out—whether or not they find themselves behind bars.

As I see it, the War on Drugs—more than any other government pro-

gram or political initiative—gave rise to mass incarceration as defined

above. Although the political dynamics that gave birth to the system

date back to slavery, the drug war marked an important turning point

in American history, one that cannot be measured simply by counting

heads in prisons and jails. The declaration and escalation of the War on

Drugs marked a moment in our past when a group of people defined by

race and class was viewed and treated as the “enemy.” A literal war was

declared on a highly vulnerable population, leading to a wave of puni-

tiveness that permeated every aspect of our criminal justice system

and redefined the scope of fundamental constitutional rights. The war

mentality resulted in the militarization of local police departments and

billions invested in drug law enforcement at the state and local levels.

It also contributed to astronomical expenditures for prison building

for people convicted of all crimes and the slashing of billions from

education, public housing and welfare programs, as well as a slew of

legislation authorizing legal discrimination against millions of people

accused of drug offenses, denying them access to housing, food stamps,

credit, basic public benefits, and financial aid for schooling. This war

did not merely increase the number of people in prisons and jails. It

radically altered the life course of millions, especially black men who

were the primary targets in the early decades of the war. Their lives and

families were destroyed for drug crimes that were largely ignored on

the other side of town.

Those who define “mass incarceration” narrowly, to include only

individuals currently locked in prisons or jails, erase from public view

the overwhelming majority of people ensnared by the system. Twice

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x i x

as many people are on probation or parole in this country as are locked in

literal cages. The United States has a staggering 2.3 million people in

prison—a higher rate of incarceration than any country in the world—

but it also has another 4.5 million people under state control outside

of prisons, on probation or parole. More than 70 million Americans—

over 20 percent of the entire U.S. population, overwhelmingly poor

and disproportionately people of color—now have criminal records

that authorize legal discrimination for life. The New Jim Crow was

intended to help people see that it is a serious mistake to think of mass

incarceration as simply a problem of too many people in prisons and

jails. It is that, but it also much, much more. Prison statistics barely

begin to capture the enormity of this crisis. And yet for too many, the

discussion begins and ends there.

None of this is to suggest that we ought not be concerned about vio-

lent crime or the large numbers of people locked in cages for violent

offenses. We will never close prisons on a large scale in this country,

or drastically reduce the prison population, if we do not change the

way we view and respond to violent crime. As many advocates have

pointed out, the distinction between survivors and perpetrators of vio-

lence is largely illusory, as virtually no one commits violence without

first surviving it. Reflexively locking people in cages and subjecting

them to degradation and humiliation— inflicting violence and suffer-

ing upon people in order to teach them that violence is wrong—is a

doomed strategy, especially considering that most people who commit

violent crime are victims as well. If we want to reduce violence in our

communities, we need to hold people accountable in ways that aim

to repair and prevent harm rather than simply inflicting more harm

and trauma and calling it justice. Fortunately, a growing number of

restorative and transformative justice advocates—such as Danielle

Sered, Fania Davis, sujatha baliga, and Mariame Kaba—are helping

communities to break free of “justice” models that benefit punishment

bureaucracies but perpetuate the harms of crime and violence.

x x x P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

These advocates recognize that responding to crime in a construc-

tive manner requires addressing interpersonal harm as well as struc-

tural harm traceable to our racial history. Violence in struggling black

communities is deeply rooted in conditions beyond the direct control

of the individuals who live there, including the profound inequalities

and indignities created by the legacies of slavery, segregation, ghet-

toization, and widespread legal discrimination and stigmatization in

the era of mass incarceration. Violence is also traceable to the brutali-

ties of global capitalism. When factories closed and moved overseas,

work suddenly disappeared from segregated communities in inner

cities, plunging them into economic collapse. Despair and violence

predictably flared. Our nation could have responded with a wave of

care and concern—with stimulus packages, bail-out plans, and major

investments in education and job creation—but instead we declared

war. Like all wars, the War on Drugs has been cruel and unforgiving.

While some black people dealing with crime and violence in their

communities have supported “get tough” tactics out of desperation,

this drug war has not been waged because black people wanted it.

Since the abolition of slavery, black people have asked for, organized

for, and demanded many large-scale interventions that might address

poverty, crime, and severe social and economic inequalities. As Car-

ol Anderson explains in White Rage, we have met enormous, some-

times violent, resistance at every turn. We’ve been told that we are

undeserving or that necessary programs or public investments are too

expensive. Funding for schools, decent housing, job creation, drug

treatment, mental health, and trauma support in black communities

is almost always in short supply. And yet, our nation has been eager

to invest more than a trillion dollars in a drug war that has decimated

our families and communities. Police, prisons, and control are the only

things that black people have ever asked for and received from this

nation, pressed down and running over—to borrow a Biblical phrase.

The drug war may have received some black support, but the politics

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x i

of white supremacy— including fear mongering, scapegoating, and a

willingness to invest heavily in racial separation, exclusion, and con-

trol (while slashing funds for welfare, education, housing, drug treat-

ment, and more)—is what ultimately gave birth to the new Jim Crow.

Over the years, when people have asked me about violent crime, I’ve

been quick to acknowledge the toll it takes on the least advantaged

communities. I find it encouraging that today, unlike ten years ago,

the question is now usually asked by those who seem committed to

deepening their understanding rather than changing the subject. I tell

them we must come to see the system of mass incarceration as a form

of organized violence against our communities, rather than a meaning-

ful response to violence committed by individuals within our commu-

nities. The safest communities are not the ones with the most police,

prisons, or electronic monitors, but the ones with quality schools,

health care, housing, plentiful jobs, and strong social networks that

allow families not merely to survive but to thrive. What our commu-

nities need and deserve is no mystery. The more difficult question is:

what is necessary to end the politics of white supremacy, to reimagine

justice, and to rebirth democracy in America?

The Way Forward

This brings us to the question that I’ve received most often since pub-

lishing The New Jim Crow: what do we do now? Many sense that a

movement to end mass incarceration is under way, and they’re eager

to join, but they don’t know where or how to find the movement, and

they wonder what contribution they could possibly make. Their confu-

sion and anxiety reflect the fact that opportunities to join movement-

building work are very limited in most communities. People often hope

that I will be able to provide a road map, or at least a compass, that will

point them in the right direction. Unfortunately, I rarely know enough

about the political and social dynamics of the places that I visit to offer

x x x i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

concrete, strategic advice about how to decarcerate their communities

and build movements that will help to remake our democracy. I can

point to promising work and organizations around the country, but I

cannot tell them what, exactly, to do under their unique circumstanc-

es, or how best to use their personal experiences, talents, and gifts in

service of the movement.

What I have said in nearly every place I’ve visited is that we must

do what is required of all liberation struggles: educate ourselves and

others, speak unpopular truths, provide support for those who have

been harmed, and organize against the systems that seek to oppress,

control, and divide us. We must demand reparations for current and

past wrongs, open our hearts and minds to one another, and heal our

communities as best we can. We must act with great courage, as well as

compassion and humility, for none of us has all the answers. Ultimate-

ly, our goal must be to reimagine what justice can and should mean in

our communities and our nation as a whole, a task that requires the

participation and leadership of those who have suffered most. There is

no road map, no guidebook. We must make do with the lessons of his-

tory and carry forward the struggles of earlier generations, guided by a

moral compass that honors the dignity and value of us all.

In view of these realities, I will not try to answer here the ques-

tion “What should we do now?” in a manner that would be true for

all people and all communities. However, I do believe the question is

a worthy one and that everyone—inside and outside of prisons and

jails—has a role to play in answering it. Instead, I will close by sharing

a few thoughts regarding my greatest concern and deepest hope for our

collective future as we strive to find a way forward.

My greatest concern is that, in the ten years since this book was pub-

lished, the system of mass incarceration has already begun to morph

into something new and potentially more dangerous. To some extent, I

saw this coming. The final chapter of The New Jim Crow predicted that

a bipartisan consensus in support of modest prison downsizing would

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x i i i

likely be reached—not because of an awakening to the humanity of

those caged, but because caging on such a massive scale had become

too expensive. It also predicted that, if advocates did not squarely con-

front the racial and social dynamics that brought us to this moment in

time, the system would likely reemerge as something new— perhaps a

cheaper version of itself. What I did not foresee or predict was the form

the new system would take. I did not predict the astonishing increase

in the detention and deportation of immigrants. Nor did I imagine that

technological advances would quickly render old- fashioned brick-and-

mortar prisons largely unnecessary as “e- carceration” turns entire

communities into open-air, digital prisons. In retrospect, these devel-

opments seem entirely predictable and obvious. But relatively few saw

them coming, just as mass incarceration itself was nearly unimagi-

nable just forty years ago.

Historian Kelly Lytle Hernandez is among those who have begun

to connect the dots between mass incarceration and mass deportation.

In her brilliant essay “Amnesty or Abolition: Felons, Illegals, and the

Case for a New Abolition Movement,” she chronicles how these sys-

tems have emerged as dual, interlocking forms of social control that

relegate “aliens” and “felons” to a racialized caste of outsiders. The

system of mass incarceration created a legal framework by which the

rights and benefits of citizenship are routinely stripped away from mil-

lions of U.S. citizens labeled “criminals” and “felons” until they mirror

(and, at times, dip below) those of non- citizen immigrants within the

United States. This extraordinary development has coincided with the

criminalization of immigration in the United States, resulting in a new

class of “illegal immigrants” and “aliens” who are viewed and treated as

criminals. Immigration violations that were once treated as minor civil

infractions are now crimes. And everyday legal infractions, ranging from

shoplifting to marijuana possession to traffic violations, now routinely

trigger one of the state’s most devastating sanctions— deportation. The

story of how our “nation of immigrants” came to deport and incarcerate

x x x i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

so many for so little, Lytle explains, is a story of race and unfreedom

reaching back to the era of emancipation. If we fail to understand the

historical relationship between these systems, especially the racial poli-

tics that enabled them, we will be unable to build a truly united front

that will prevent the continual re-formation of systems of racial and

social control.

I have found, in recent years, that those who argue that the systems

of mass incarceration and mass deportation simply reflect sincere (but

misguided) efforts to address the real harms caused by crime, or the

real challenges created by surges in immigration, tend to underesti-

mate the corrupting influence of white supremacy and capitalism in

our politics whenever black and brown people are perceived to be the

problem. W.E.B. Du Bois famously asked back in 1897: “Between me

and the other world, there is ever an unasked question: How does it

feel to be a problem?” White people are generally allowed to have prob-

lems, and they’ve historically been granted the power to define and

respond to them. But people of color—in this “land of the free” forged

through slavery and genocide—are regularly viewed and treated as the

problem.

This distinction has made all the difference. Once human beings

are defined as the problem in the public consciousness, their elimi-

nation through deportation, incarceration, or even genocide becomes

nearly inevitable. White nationalism, at its core, reflects a belief that

our nation’s problems would be solved if only people of color could

somehow be gotten rid of, or at least better controlled. In short, mass

incarceration and mass deportation have less to do with crime and

immigration than the ways we’ve chosen to respond to those issues

when black and brown people are framed as the problem. As Khalil

Gibran Muhammad points out in The Condemnation of Blackness,

throughout our nation’s history, when crime and immigration have

been perceived as white, our nation’s response has been radically dif-

ferent from when those phenomena have been defined as black or

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x v

brown. The systems of mass incarceration and mass deportation may

seem entirely unrelated at first glance, but they are both deeply rooted

in our racial history, and they both have expanded in part because of

the enormous profits to be made in controlling, exploiting, and elimi-

nating vulnerable human beings.

Indeed, during the past decade, capitalism has accelerated the expan-

sion and evolution of these systems of control, even as public opinion

has begun to turn against mass incarceration. Private prison compa-

nies and other corporations have begun to adjust their business models

now that politicians across the political spectrum are looking to save

money by downsizing prisons. According to a report released last year

by the Center for Media Justice, four large corporations— including

the GEO Group, the largest private prison company—have entered

into private contracts with government agencies to provide electronic

monitoring of people suspected or convicted of crimes in thirty- eight

states, for a combined annual revenue of almost $700 million. Compa-

nies that earned millions on contracts to run or serve prisons are now

poised to earn billions through the surveillance and monitoring of the

same population. Even if old- fashioned prisons fade away, the profit

margins of these companies will widen as long as growing numbers of

people find themselves subject to perpetual criminalization, surveil-

lance, monitoring, and control.

To date, private prisons have controlled a relatively small number

of citizens who are incarcerated; most of their money has been made

from caging immigrants. But now, due to recent developments in tech-

nology and shifting business models, these corporations are well posi-

tioned to make billions locking entire communities in digital prisons.

Electronic monitoring is now being used widely to track, monitor, and

surveil U.S. citizens released on probation or parole— often with those

being monitored footing the bill—as well as immigrants released from

custody at the border.

It is not difficult to imagine a scenario in which racial and class

x x x v i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

segregation are maintained digitally in the United States, via remote

control, with impoverished communities of color confined to their

neighborhoods by electronic monitors that alert the police when peo-

ple step outside their designated zones. This is not the stuff of sci-

fi/fantasy or teen dystopian fiction; this is the world that many of us

are co-creating right now even as we claim to be working to end mass

incarceration.

Thousands of people are already living in this fearsome new world.

In fact, in many jurisdictions today, judges make decisions about who

should be held in jail and who should be set “free” based on a com-

puter algorithm. If you’re lucky enough to be released, an expensive

monitoring device will immediately be shackled to your ankle: a GPS

tracking device provided by a private company that may charge you

up to $300 per month. Your permitted zones of movement may make

it difficult or impossible for you to keep a job, visit family members,

attend school, or care for your kids. You will find yourself trapped

in an open-air, digital prison—one that may not extend beyond your

house, your block, or your neighborhood, depending on the judge’s

orders. One false step (or one malfunction of the GPS tracking device)

will bring the cops to your door, your workplace, or wherever you may

be, to snatch you right back to jail. If you’re an immigrant, an elec-

tronic monitor may bring ICE to your door. Suddenly, you’re whisked

away to a private detention center, then placed on a plane and shipped

thousands of miles away, where you’re deposited in another country

like unwanted cargo.

Sadly, some reformers are counting these technological develop-

ments as progress. In our zeal to make some headway in the fight

against mass incarceration, some well-intentioned advocates are

embracing technical solutions to the profound human and moral cri-

ses we face. They say: Isn’t it better for someone to be on a monitor

rather than locked in a prison? Isn’t it better for a computer algorithm

to decide your fate than a racist judge? Even though algorithms are

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x v i i

often discriminatory— since they reflect in their programming bias-

es already baked into our criminal justice system—and even though

being constantly surveilled by an electronic monitor isn’t actually free-

dom, many reformers believe these kinds of technological advances can

point us in the direction of justice. I am skeptical that is the case. As I

noted in the foreword to Maya Schenwar and Victoria Law’s book Pris-

on by Any Other Name: The Harmful Consequences of Popular Reforms,

we’ve learned how to send people into outer space and how to shrink a

powerful computer into a device that fits into the palm of our hand, yet

we haven’t yet learned how to face our racial history or how to tell the

truth about the devastation wrought by colonialism, militarism, and

global capitalism. We’ve learned how to develop powerful surveillance

systems and how to build missiles that can reach halfway around the

globe. But what have we learned about the true meaning of justice?

Of course most people, including myself, would prefer to be sub-

jected to electronic monitoring than to be locked in a cement cage.

That reality must not be denied. But what does it mean for the future

of our communities to celebrate reforms that convert our homes into

prisons? Or that turn our neighborhoods into digital concentration

camps patrolled by drones? I find it difficult to call this progress.

As momentum builds for some kind of reform, I hope that we will

consider carefully what counts as meaningful progress toward ending

the history and cycle of caste systems in America. When most people

describe the “growing bipartisan consensus to end mass incarcera-

tion,” they are typically defining the problem of mass incarceration

in the narrowest possible terms, focusing only on reducing somewhat

the number of people who are currently behind bars. As a result, cel-

ebrated reforms typically amount to little more than tinkering with

the mass incarceration machine. While reform work is certainly nec-

essary to free people whose lives are being wasted behind bars and

to mitigate the harms of mass incarceration, we must not be seduced

into believing that improving the system is the same as dismantling or

x x x v i i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

transforming it. As Angela Davis has explained, if we accept uncriti-

cally the notion that prisons offer an answer, and that all we must do is

improve our so-called justice systems, we evade the “responsibility of

seriously engaging with the problems of our society, especially those

produced by racism and, increasingly, global capitalism.” Our ultimate

goal—if we truly aim to overcome our nation’s habit of constructing

enormous systems of racial and social control—cannot simply be to

reduce the number of people behind bars. We must strive to create a

nation in which caging people en masse—digitally or literally—and

stripping them of basic civil and human rights for the rest of their lives

is not only unnecessary but unthinkable.

Nor can our goal simply be to eliminate racial disparities in our

criminal injustice system, as though subjecting more white people to

the system would somehow redeem it. In fact, during the past decade,

racial disparities in the American prison system have been on the

decline. Experts are divided regarding the causes; some believe that

it is largely the result of increased arrests and convictions of white

people due to the opioid crisis and their declining socioeconomic

prospects; others believe that recent drug policy reforms have benefit-

ted African Americans the most (since they were the primary targets

of the drug war); and still others believe that large numbers of Latinos

are being misclassified as white, distorting the data. The important

question, however, is whether we want to celebrate as “progress” any

development that might reflect the morphing or evolution of the sys-

tem, rather than its demise. Human rights champion Bryan Steven-

son has observed that “slavery didn’t end; it evolved.” Today, we can

see, in real time, the system of mass incarceration evolving before

our eyes, as enormous investments are made in immigrant detention

centers and digital prisons, and as growing numbers of white people

become collateral damage in a war that was declared with black peo-

ple in mind.

Discerning whether, and to what extent, meaningful progress is

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x x x i x

being made requires that we take a broad view. Often when a leap

forward seems to have been made with respect to one policy, or one

aspect of the system, it soon becomes apparent that the core problem

has not been solved but has rather changed form. Consider drug policy

under the Obama administration. Many of us rightly celebrated when

President Obama granted clemency to nearly 2,000 people—many of

whom had been imprisoned for drug crimes—and signed legislation

that reduced the disparity in sentencing between crack and powder

cocaine. Yet the Obama administration also greatly increased deten-

tions and deportations of people for drug offenses. According to Human

Rights Watch, between 2007 and 2012, post- conviction deportations

for simple drug possession increased by 43 percent. In those years,

roughly 260,000 non- citizens were evicted from the country having

been convicted of drug offenses, 34,000 of whom had been caught in

possession of marijuana. Obama attempted to defend mass deporta-

tion by claiming that his administration was focused on deporting:

“Felons, not families. Criminals, not children. Gang members, not

a mom who’s working hard to provide for her kids.” But of course,

“felons” have families. And “criminals” are often children or teenagers.

The notion that if you’ve ever committed a crime you’re permanently

disposable is the very idea that has rationalized mass incarceration in

the United States.

Both mass incarceration and mass deportation have been errone-

ously justified on the grounds that these systems are necessary to keep

us safe. Just as the public was initially led to believe that the War on

Drugs was focused on “drug kingpins” or “violent offenders”—when

the opposite was true—our nation’s current war on immigrants has

been advertised as necessary to rid us of “terrorists, gang members, or

violent criminals,” when in fact the overwhelming majority of immi-

grants detained and deported have no criminal record and pose no

threat. In 2014, The New York Times found in an investigation of gov-

ernment records that two- thirds of immigrants deported during the

x l P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

Obama administration committed minor traffic violations or had no

criminal record at all. Only 20 percent had a criminal record or faced

drug charges.

Two years later, The Marshall Project reported that the data remained

largely unchanged, and that the actual priorities of the Obama admin-

istration, as laid out in a 2014 Department of Homeland Security memo,

were not as narrow as Obama had implied in public remarks. Anyone

who had illegally entered the country after 2014 was considered a pri-

ority, regardless of whether they had committed other crimes. Immi-

grants with only misdemeanors on their record were still relatively

high on the list. Anyone with an “aggravated felony” was deemed a

number-one priority, but the extremely broad definition of “aggravated

felony” under immigration law includes people whose crimes are nei-

ther aggravated nor a felony. The term can apply to convictions such as

shoplifting, drug possession, and low-level crimes that carry little or

no jail time. Overall, the data revealed that, notwithstanding Obama’s

rhetoric, the overwhelming majority of people who were deported had

no criminal record or were guilty only of nonviolent crimes and mis-

demeanors, including drug possession. Roughly 60 percent of depor-

tations involved people with no criminal record at all.

However, even if the Obama administration had limited mass deten-

tions and deportations to people with criminal records, it would have

been a mistake for us to turn a blind eye. It may be tempting to imagine

that ridding our nation of “criminals,” rather than “innocent” people,

is perfectly justifiable. But criminality is not truly a limiting principle.

All of us make mistakes. Young people, in particular, are prone to bad

judgment—as voluminous scientific evidence now attests. Virtually all

of us break the law at some point in our lives—drinking under age,

experimenting with drugs, committing traffic violations, shoplifting,

failing to declare tips or cash income on tax returns, or even commit-

ting acts of violence in a schoolyard fight or when our emotions spin

out of control. Rationalizing mass incarceration or mass deportation

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x l i

on the grounds that it is meant to rid our nation of “criminals” perpet-

uates the false notion that “criminals” are a monolithic, deviant group

that is fundamentally different than “us” and therefore unworthy of

our concern. They can be eliminated without a second thought.

Equally important, what gets defined as crime, and who gets sur-

veilled and punished, generally has more to do with the politics of

race and class than the harm that any particular behavior or activity

causes. As Alec Karakatsanis observes in Usual Cruelty: The Complic-

ity of Lawyers in the Criminal Injustice System, people with race and

class privilege are generally shielded from criminal prosecution, even

though their crimes often cause far greater harm than the crimes of

the poor. The most obvious example is the prosecutorial response

to the financial crisis of 2008 and the related scandals: “Employ-

ees at banks committed crimes including lying to investigators and

regulators, fraudulently portraying junk assets as valuable assets,

rate- rigging, bribing foreign officials, submitting false documents,

mortgage fraud, fraudulent home foreclosures, financing drug car-

tels, orchestrating and enabling widespread tax evasion, and violating

international sanctions.” The massive criminality caused enormous

harm. African Americans lost over half their wealth due to the collapse

of real estate markets and the financial crisis. By the end of the cri-

sis, in 2009, median household wealth for all Americans had declined

by $27,000, leaving almost 44 million people in poverty. While some

banks were eventually prosecuted (and agreed to pay fines that were

a small fraction of their profits), the individuals who committed these

crimes were typically spared. Despite engaging in forms of criminality

that destroyed the lives and wealth of millions, they were not rounded

up, dragged away in handcuffs, placed in cages, and then stripped of

their basic civil and human rights or shipped to another country. Their

mug shots never appeared on the evening news and they never had to

wave goodbye to their children in a courtroom, unable to give them a

final embrace.

x l i i P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

One of the lessons of recent decades is that racial caste systems can

grow and thrive even when our elected leaders claim to be progressive

and espouse the rhetoric of equality, inclusion, and civil rights. Presi-

dent Bill Clinton, who publicly aligned himself with the black com-

munity and black leaders, escalated the racially discriminatory drug

war in part to avoid being cast by conservatives as “soft on crime.”

Similarly, President Obama publicly preached values of inclusion and

compassion toward immigrants, yet he escalated the detention and

deportation of non-citizens. In both cases, highly racialized and puni-

tive systems thrived under liberal presidents who were given the ben-

efit of the doubt by those who might otherwise have been critics. Their

public displays of affection for communities of color, the egalitarian

values they preached, and their liberal or progressive stances on other

issues helped to shield these vast systems of control from close scru-

tiny. Many of us saw these presidents as “good people” with our best

interests at heart, doing what they could to navigate a political envi-

ronment in which only limited justice is possible. All of these factors

played a role, but one was key: these systems grew with relatively little

political resistance because people of all colors were willing to toler-

ate the disposal of millions of individuals once they had been labeled

criminals in the media and political discourse. This painful reality

suggests that ending our nation’s habit of creating enormous systems

of racial and social control requires us to expand our sphere of moral

concern so widely that none of us, not even those branded criminals,

can be viewed or treated as disposable.

If there is any silver lining to be found in the election of Don-

ald Trump to the presidency, it is that millions of people have been

inspired to demonstrate solidarity on a large scale across the lines of

gender, race, and class in defense of those who have been demonized

and targeted for elimination. Trump’s blatant racial demagoguery has

awakened many from their colorblind slumber and spurred collective

action to oppose the Muslim ban and the border wall, and to create

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x l i i i

sanctuaries for immigrants in their places of worship and local com-

munities. Many who are engaged in this work are also deeply involved

in, or supportive of, movements to end police violence and mass incar-

ceration. Growing numbers of people are beginning to see how the

politics of white supremacy have resurfaced again and again, leading

to the creation and maintenance of new systems of racial and social

control. A politics of deep solidarity is beginning to emerge—the only

form of politics that holds any hope for our collective liberation.

I know that some black people may feel a bit resentful in these

times, given the sudden outpouring of support for immigrants and the

newfound compassion for drug users—now that the opioid crisis is

perceived as white. With good reason, some ask: Where was the sup-

port or compassion for us when black people were declared the enemy?

Where were our “sanctuary cities”? Why should we care what happens

to white opioid users or immigrants being rounded up at the border

when no one seems to care when our families are torn apart, or when

our loved ones struggle with addiction, or when our children are shot

by the police or break the law out of desperation? These questions are

valid, reflecting racial dynamics that are real and not imagined.

Yet these concerns have not stopped the majority of black people and

black-led organizations from opposing the Muslim ban and the mass

deportation of undocumented immigrants. One survey, conducted by

the African American Research Collaborative (along with Latino Deci-

sions and Asian American Decisions) just prior to election day in 2018,

found that black voters overwhelmingly oppose Trump’s approach to

immigration, with 74 percent choosing “Immigrants just want to pro-

vide a better life for their families, just like you and me” over “America

has too many illegal immigrants, they hurt the economy, bring crime

and gang violence to our cities.” Another poll found that 77 percent of

African Americans opposed building the border wall—a higher per-

centage than any other racial or ethnic group. Black people also have

the highest support for the DREAM Act, which provides a pathway to

x l i v P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N

citizenship for people brought to the United States as children, and

they are most opposed to Trump’s policy of separating children and

parents at the border.

Why? As Henry Fernandez and Jennifer Jones explain in their

review of the polling data, “Black people know what it’s like to have

their communities terrorized, to feel fear when pulled over by police,

and to fight to keep their families together.” If history has taught us

anything by now, it is that the politics of white supremacy will never

redound to our benefit in the long run, and those who profit from the

suffering of others will never hesitate to profit from our suffering when

the opportunity arises. The first private prison in this country was

created to cage immigrants; now private prison companies have their

sights set on building digital prisons that may have an even more dev-

astating impact on black communities than brick-and-mortar ones, as

it is far easier to contain and control entire communities digitally than

with cement walls. Similarly, key provisions in the Patriot Act, which

allowed the government to search homes without notifying their own-

ers or residents and which were advertised as necessary to root out

Muslim terrorists following 9/11, wound up being used primarily in

drug law enforcement—not terrorism investigations.

The future of our democracy may depend on other racial and ethnic

groups learning to see that our fates are, in fact, inescapably inter-

twined. If we, as a nation, are ever to free ourselves from the logic and

politics of white supremacy, we must not allow ourselves to imagine

that progress is made if the system causes greater harm to “them” than

“us.” Nor can we be seduced into believing that ending racially hostile

rhetoric is the same thing as ending systems of racial and social con-

trol, or that simply electing a different president or a different political

party will necessarily free us from the history and cycle of creating

caste-like systems in America. More is required of us in these times.

We must learn to care for one another across all boundaries and bor-

ders and build a movement of movements rooted in a love so fierce

P R E F A C E T O T H E T E N T H A N N I V E R S A R Y E D I T I O N x l v

that when a Mexican child is ripped from the arms of his mother at the

border, and when a black child is ripped from the arms of her mother

as she’s arrested on the streets of New York, and when a white child is

ripped from the arms of her mother in a courtroom in Oklahoma, we

feel the same pain, the same agony, as though it were our own children.

For many of us, it is our own children whose lives are at stake.

More than a century after W.E.B. Du Bois declared that “the prob-

lem of the twentieth century is the problem of the color line,” our

political landscape remains riven by race and corrupted by greed. Yet

there is reason for hope. New movements, led by new generations and

those most impacted by injustice, are rising to face the challenges this

moment in our history presents. The struggle to birth a truly inclusive,

egalitarian democracy—a nation in which every voice and every life

truly matters—did not begin with us and will not end with us. This

struggle is as old as the nation itself and the birth process has been

painful, to say the least. My greatest hope and prayer is that we will

serve as faithful midwives and do what we can in our lifetimes to make

America, finally, what it must become.

Foreword

CORNEL WEST

Michelle Alexander’s The New Jim Crow is the secular bible for a new social movement in early twenty-first–century Ameri- ca. Like C. Vann Woodward’s The Strange Career of Jim Crow—a book

Martin Luther King Jr. called “the historical bible of the Civil Rights

Movement”—we are witnessing the unique union of a powerful and

poignant text with a democratic awakening focused on the poor and

vulnerable in American society. The New Jim Crow is an instant classic

because it captures the emerging spirit of our age. For too long, there

has been no mass fight back against the multileveled assault on poor

and vulnerable people, despite the heroic work of intellectual free-

dom fighters including Marian Wright Edelman, Angela Davis, Loïc

Wacquant, Glenn Loury, Marc Mauer, and others. Yet the sleepwalk-

ing is slowly but surely coming to a close as more and more fellow

citizens realize that the iron cage they inhabit—maybe even a golden

cage for the affluent—is still a form of bondage. The New Jim Crow is

a grand wake-up call in the midst of a long slumber of indifference

to the poor and vulnerable. This indifference promotes a superficial

ethic of success—money, fame, and pleasure—that leaves too many

well-adjusted to injustice. In short, this book is a genuine resurrection

of the spirit of Martin Luther King Jr. amid the confusion of the Age

of Obama.

While the Age of Obama is a time of historic breakthroughs at the

x l v i i i F O R E W O R D

level of racial symbols and political surfaces, Michelle Alexander’s

magisterial work takes us beyond these breakthroughs to the systemic

breakdown of black and poor communities devastated by mass unem-

ployment, social neglect, economic abandonment, and intense police

surveillance. Her subtle analysis shifts our attention from the racial

symbol of America’s achievement to the actual substance of America’s

shame: the massive use of state power to incarcerate hundreds of thou-

sands of precious poor, black, male (and, increasingly, female) young

people in the name of a bogus “War on Drugs.” And her nuanced his-

torical narrative tracing the unconscionable treatment and brutal con-

trol of black people—slavery, Jim Crow, mass incarceration—takes us

beneath the political surfaces and lays bare the structures of a racial

caste system alive and well in the age of colorblindness. In fact, the very

discourse of colorblindness—created by neoconservatives and neolib-

erals in order to trivialize and disguise the depths of black suffering in

the 1980s and ’90s—has left America blind to the New Jim Crow. How

sad it is that this blindness has persisted under both Republican and

Democratic administrations and remains to this day hardly acknowl-

edged or examined in our nation’s public discourse.

The New Jim Crow shatters this silence. Once you read it, you have

crossed the Rubicon and there is no return to sleepwalking. You are

now awakened to a dark and ugly reality that has been in place for

decades and that is continuous with the racist underside of American

history from the advent of slavery onward. There is no doubt that if

young white people were incarcerated at the same rates as young black

people, the issue would be a national emergency. But it is also true that

if young black middle- and upper-class people were incarcerated at the

same rates as young black poor people, black leaders would focus much

more on the prison-industrial complex. Again, Michelle Alexander has

exposed the class bias of much of black leadership as well as the racial

bias of American leadership, for whom the poor and vulnerable of all

colors are a low priority. As Alexander puts it in her fiery and bold last

F O R E W O R D x l i x

chapter, “The Fire This Time” (with echoes from the great James Bald-

win!), “It is this failure to care, really care across color lines, that lies at

the core of this system of control and every racial caste system that has

existed in the United States or anywhere else in the world.”

Martin Luther King Jr. called for us to be lovestruck with each other,

not colorblind toward each other. To be lovestruck is to care, to have

deep compassion, and to be concerned for each and every individual,

including the poor and vulnerable. The social movement fanned and

fueled by this historic book is a democratic awakening that says we do

care, that the racial caste system must be dismantled, that we need a

revolution in our warped priorities, a transfer of power from oligarchs

to the people—and that we are willing to live and die to make it so!

This book is not for everyone. I have a specific audience in mind—people who care deeply about racial justice but who, for any num- ber of reasons, do not yet appreciate the magnitude of the crisis faced

by communities of color as a result of mass incarceration. In other

words, I am writing this book for people like me—the person I was ten

years ago. I am also writing it for another audience—those who have

been struggling to persuade their friends, neighbors, relatives, teach-

ers, co-workers, or political representatives that something is eerily

familiar about the way our criminal justice system operates, some-

thing that looks and feels a lot like an era we supposedly left behind—

but who have lacked the facts and data to back up their claims. It is my

hope and prayer that this book empowers you and allows you to speak

your truth with greater conviction, credibility, and courage. Last, but

definitely not least, I am writing this book for all those trapped within

America’s latest caste system. You may be locked up or locked out of

mainstream society, but you are not forgotten.

Preface

T H E N E W J I M   C R O W

Jarvious Cotton cannot vote. Like his father, grandfather, great-grandfather, and great-great-grandfather, he has been denied the right to participate in our electoral democracy. Cotton’s family tree

tells the story of several generations of black men who were born in the

United States but who were denied the most basic freedom that democ-

racy promises—the freedom to vote for those who will make the rules

and laws that govern one’s life. Cotton’s great-great-grandfather could

not vote as a slave. His great-grandfather was beaten to death by the Ku

Klux Klan for attempting to vote. His grandfather was prevented from

voting by Klan intimidation. His father was barred from voting by poll

taxes and literacy tests. Today, Jarvious Cotton cannot vote because

he, like many black men in the United States, has been labeled a felon

and is currently on parole.1

Cotton’s story illustrates, in many respects, the old adage “The more

things change, the more they remain the same.” In each generation,

new tactics have been used for achieving the same goals—goals shared

by the Founding Fathers. Denying African Americans citizenship was

deemed essential to the formation of the original union. Hundreds of

years later, America is still not an egalitarian democracy. The argu-

ments and rationalizations that have been trotted out in support of

racial exclusion and discrimination in its various forms have changed

and evolved, but the outcome has remained largely the same. An

Introduction

2 T H E N E W J I M   C R O W

extraordinary percentage of black men in the United States are legally

barred from voting today, just as they have been throughout most of

American history. They are also subject to legalized discrimination

in employment, housing, education, public benefits, and jury service,

just as their parents, grandparents, and great-grandparents once were.

What has changed since the collapse of Jim Crow has less to do with

the basic structure of our society than with the language we use to jus-

tify it. In the era of colorblindness, it is no longer socially permissible to

use race, explicitly, as a justification for discrimination, exclusion, and

social contempt. So we don’t. Rather than rely on race, we use our crim-

inal justice system to label people of color “criminals” and then engage

in all the practices we supposedly left behind. Today it is perfectly legal

to discriminate against criminals in nearly all the ways that it was once

legal to discriminate against African Americans. Once you’re labeled a

felon, the old forms of discrimination—employment discrimination,

housing discrimination, denial of the right to vote, denial of educa-

tional opportunity, denial of food stamps and other public benefits, and

exclusion from jury service—are suddenly legal. As a criminal, you are

afforded scarcely more rights, and arguably less respect, than a black

man living in Alabama at the height of Jim Crow. We have not ended

racial caste in America; we have merely redesigned it.

I reached the conclusions presented in this book reluctantly. Ten years

ago, I would have argued strenuously against the central claim made

here—namely, that something akin to a racial caste system currently

exists in the United States. Indeed, if Barack Obama had been elected

president back then, I would have argued that his election marked the

nation’s triumph over racial caste—the final nail in the coffin of Jim

Crow. My elation would have been tempered by the distance yet to be

traveled to reach the promised land of racial justice in America, but

my conviction that nothing remotely similar to Jim Crow exists in this

country would have been steadfast.

I N T R O D U C T I O N 3

Today my elation over Obama’s election is tempered by a far more

sobering awareness. As an African American woman, with three young

children who will never know a world in which a black man could not

be president of the United States, I was beyond thrilled on election

night. Yet when I walked out of the election night party, full of hope

and enthusiasm, I was immediately reminded of the harsh realities of

the New Jim Crow. A black man was on his knees in the gutter, hands

cuffed behind his back, as several police officers stood around him

talking, joking, and ignoring his human existence. People poured out

of the building; many stared for a moment at the black man cower-

ing in the street and then averted their gaze. What did the election of

Barack Obama mean for him?

Like many civil rights lawyers, I was inspired to attend law school

by the civil rights victories of the 1950s and 1960s. Even in the face

of growing social and political opposition to remedial policies such as

affirmative action, I clung to the notion that the evils of Jim Crow are

behind us and that, while we have a long way to go to fulfill the dream

of an egalitarian, multiracial democracy, we have made real progress

and are now struggling to hold on to the gains of the past. I thought my

job as a civil rights lawyer was to join with the allies of racial progress

to resist attacks on affirmative action and to eliminate the vestiges of

Jim Crow segregation, including our still separate and unequal system

of education. I understood the problems plaguing poor communities

of color, including problems associated with crime and rising incar-

ceration rates, to be a function of poverty and lack of access to quality

education—the continuing legacy of slavery and Jim Crow. Never did

I seriously consider the possibility that a new racial caste system was

operating in this country. The new system had been developed and

implemented swiftly, and it was largely invisible, even to people, like

me, who spent most of their waking hours fighting for justice.

I first encountered the idea of a new racial caste system more than a

decade ago, when a bright orange poster caught my eye. I was rushing

4 T H E N E W J I M   C R O W

to catch the bus, and I noticed a sign stapled to a telephone pole that

screamed in large bold print: THE DRUG WAR IS THE NEW JIM CROW. I

paused for a moment and skimmed the text of the flyer. Some radical

group was holding a community meeting about police brutality, the

new three strikes law in California, and the expansion of America’s

prison system. The meeting was being held at a small community

church a few blocks away; it had seating capacity for no more than

fifty people. I sighed, and muttered to myself something like, “Yeah,

the criminal justice system is racist in many ways, but it really doesn’t

help to make such an absurd comparison. People will just think you’re

crazy.” I then crossed the street and hopped on the bus. I was headed

to my new job: director of the Racial Justice Project of the American

Civil Liberties Union (ACLU) in Northern California.

When I began my work at the ACLU, I assumed that the criminal jus-

tice system had problems of racial bias, much in the same way that all

major institutions in our society are plagued with problems associated

with conscious and unconscious bias. As a lawyer who had litigated

numerous class-action employment-discrimination cases, I under-

stood well the many ways in which racial stereotyping can permeate

subjective decision-making processes at all levels of an organization,

with devastating consequences. I was familiar with the challenges

associated with reforming institutions in which racial stratification

is thought to be normal—the natural consequence of differences in

education, culture, motivation, and, some still believe, innate ability.

While at the ACLU, I shifted my focus from employment discrimi-

nation to criminal justice reform and dedicated myself to the task of

working with others to identify and eliminate racial bias whenever and

wherever it reared its ugly head.

By the time I left the ACLU, I had come to suspect that I was wrong

about the criminal justice system. It was not just another institution

infected with racial bias but rather a different beast entirely. The activ-

ists who posted the sign on the telephone pole were not crazy; nor were

I N T R O D U C T I O N 5

the smattering of lawyers and advocates around the country who were

beginning to connect the dots between our current system of mass

incarceration and earlier forms of social control. Quite belatedly, I came

to see that mass incarceration in the United States had, in fact, emerged

as a stunningly comprehensive and well- disguised system of racialized

social control that functions in a manner strikingly similar to Jim Crow.

In my experience, people who have been incarcerated rarely have

difficulty identifying the parallels between these systems of social con-

trol. Once they are released, they are often denied the right to vote,

excluded from juries, and relegated to a racially segregated and sub-

ordinated existence. Through a web of laws, regulations, and informal

rules, all of which are powerfully reinforced by social stigma, they are

confined to the margins of mainstream society and denied access to

the mainstream economy. They are legally denied the ability to obtain

employment, housing, and public benefits—much as African Ameri-

cans were once forced into a segregated, second- class citizenship in

the Jim Crow era.

Those of us who have viewed that world from a comfortable

distance—yet sympathize with the plight of the so- called underclass—

tend to interpret the experience of those caught up in the criminal jus-

tice system primarily through the lens of popularized social science,

attributing the staggering increase in incarceration rates in commu-

nities of color to the predictable, though unfortunate, consequences

of poverty, racial segregation, unequal educational opportunities, and

the presumed realities of the drug market, including the mistaken

belief that most drug dealers are black or brown. Occasionally, in the

course of my work, someone would make a remark suggesting that

perhaps the War on Drugs is a racist conspiracy to put blacks back in

their place. This type of remark was invariably accompanied by ner-

vous laughter, intended to convey the impression that although the

idea had crossed their minds, it was not an idea a reasonable person

would take seriously.

6 T H E N E W J I M   C R O W

Most people assume the War on Drugs was launched in response to

the crisis caused by crack cocaine in inner-city neighborhoods. This

view holds that the racial disparities in drug convictions and sen-

tences, as well as the rapid explosion of the prison population, reflect

nothing more than the government’s zealous—but benign—efforts to

address rampant drug crime in poor, minority neighborhoods. This

view, while understandable, given the sensational media coverage of

crack in the 1980s and 1990s, is simply wrong. While it is true that

the publicity surrounding crack cocaine led to a dramatic increase in

funding for the drug war (as well as to sentencing policies that greatly

exacerbated racial disparities in incarceration rates), there is no truth

to the notion that the War on Drugs was launched in response to crack

cocaine. President Ronald Reagan officially announced the current

drug war in 1982, before crack became an issue in the media or a cri-

sis in poor black neighborhoods. A few years after the drug war was

declared, crack began to spread rapidly in the poor black neighbor-

hoods of Los Angeles and later emerged in cities across the country.2

The Reagan administration hired staff to publicize the emergence of

crack cocaine in 1985 as part of a strategic effort to build public and

legislative support for the war.3 The media campaign was an extraordi-

nary success. Almost overnight, the media was saturated with images

of black “crack whores,” “crack dealers,” and “crack babies”—images

that seemed to confirm the worst negative racial stereotypes about

impoverished inner-city residents. The media bonanza surrounding

the “new demon drug” helped to catapult the War on Drugs from an

ambitious federal policy to an actual war.

The timing of the crack crisis helped to fuel conspiracy theories

and general speculation in poor black communities that the War on

Drugs was part of a genocidal plan by the government to destroy black

people in the United States. From the outset, stories circulated on

the street that crack and other drugs were being brought into black

neighborhoods by the CIA. Eventually, even the Urban League came

I N T R O D U C T I O N 7

to take the claims of genocide seriously. In its 1990 report “The State

of Black America,” it stated: “There is at least one concept that must

be recognized if one is to see the pervasive and insidious nature of

the drug problem for the African American community. Though dif-

ficult to accept, that is the concept of genocide.” 4 While the conspiracy

theories were initially dismissed as far-fetched, if not downright loony,

the word on the street turned out to be right, at least to a point. The

CIA admitted in 1998 that guerrilla armies it actively supported in

Nicaragua were smuggling illegal drugs into the United States—drugs

that were making their way onto the streets of inner-city black neigh-

borhoods in the form of crack cocaine. The CIA also admitted that, in

the midst of the War on Drugs, it blocked law enforcement efforts to

investigate illegal drug networks that were helping to fund its covert

war in Nicaragua.5

It bears emphasis that the CIA never admitted (nor has any evi-

dence been revealed to support the claim) that it intentionally sought

the destruction of the black community by allowing illegal drugs to

be smuggled into the United States. Nonetheless, conspiracy theorists

surely must be forgiven for their bold accusation of genocide, in light

of the devastation wrought by crack cocaine and the drug war, and the

odd coincidence that an illegal drug crisis suddenly appeared in the

black community after—not before—a drug war had been declared.

In fact, the War on Drugs began at a time when illegal drug use was

on the decline.6 During this same time period, however, a war was

declared, causing arrests and convictions for drug offenses to skyrock-

et, especially among people of color.

The impact of the drug war has been astounding. In less than thirty

years, the U.S. penal population exploded from around 300,000 to

more than 2 million, with drug convictions accounting for the major-

ity of the increase.7

The United States now has the highest rate of incarceration in the

world, dwarfing the rates of nearly every developed country, even

8 T H E N E W J I M   C R O W

surpassing those in highly repressive regimes like Russia, China, and

Iran. In Germany, 93 people are in prison for every 100,000 adults

and children. In the United States, the rate is roughly eight times

that, or 750 per 100,000.8

The racial dimension of mass incarceration is its most striking fea-

ture. No other country in the world imprisons so many of its racial or

ethnic minorities. The United States imprisons a larger percentage of

its black population than South Africa did at the height of apartheid.

In Washington, DC, our nation’s capital, it is estimated that three out

of four young black men (and nearly all those in the poorest neighbor-

hoods) can expect to serve time in prison.9 Similar rates of incarcera-

tion can be found in black communities across America.

These stark racial disparities cannot be explained by rates of drug

crime. Studies show that people of all colors use and sell illegal drugs

at remarkably similar rates.10 If there are significant differences in the

surveys to be found, they frequently suggest that whites, particularly

white youth, are more likely to engage in drug crime than people of

color.11 That is not what one would guess, however, when entering our

nation’s prisons and jails, which are overflowing with black and brown

people convicted of drug crimes. In some states, black men have been

admitted to prison on drug charges at rates twenty to fifty times great-

er than those of white men.12 And in major cities wracked by the drug

war, as many as 80 percent of young African American men now have

criminal records and are thus subject to legalized discrimination for

the rest of their lives.13 These young men are part of a growing under-

caste, permanently locked up and locked out of mainstream society.

It may be surprising to some that drug crime was declining, not rising,

when a drug war was declared. From a historical perspective, however,

the lack of correlation between crime and punishment is nothing new.

Sociologists have frequently observed that governments use punish-

I N T R O D U C T I O N 9

ment primarily as a tool of social control, and thus the extent or sever-

ity of punishment is often unrelated to actual crime patterns. Michael

Tonry explains in Thinking About Crime: “Governments decide how

much punishment they want, and these decisions are in no simple way

related to crime rates.”14 This fact, he points out, can be seen most

clearly by putting crime and punishment in comparative perspective.

Although crime rates in the United States have not been markedly

higher than those of other Western countries, the rate of incarceration

has soared in the United States while it has remained stable or declined

in other countries. Between 1960 and 1990, for example, official crime

rates in Finland, Germany, and the United States were close to identi-

cal. Yet the U.S. incarceration rate quadrupled, the Finnish rate fell by

60 percent, and the German rate was stable in that period.15 Despite

similar crime rates, each government chose to impose different levels

of punishment.

Today, due to recent declines, U.S. crime rates have dipped below

the international norm. Nevertheless, the United States now boasts an

incarceration rate that is six to ten times greater than that of other

industrialized nations16—a development directly traceable to the drug

war. The only country in the world that even comes close to the Ameri-

can rate of incarceration is Russia, and no other country in the world

incarcerates such an astonishing percentage of its racial or ethnic

minorities.

The stark and sobering reality is that, for reasons largely unrelated

to actual crime trends, the American penal system has emerged as a

system of social control unparalleled in world history. And while the

size of the system alone might suggest that it would touch the lives

of most Americans, the primary targets of its control can be defined

largely by race. This is an astonishing development, especially given

that as recently as the mid-1970s, the most well-respected criminolo-

gists were predicting that the prison system would soon fade away.

10 T H E N E W J I M   C R O W

Prison did not deter crime significantly, many experts concluded.

Those who had meaningful economic and social opportunities were

unlikely to commit crimes regardless of the penalty, while those

who went to prison were far more likely to commit crimes again in

the future. The growing consensus among experts was perhaps best

reflected by the National Advisory Commission on Criminal Justice

Standards and Goals, which issued a recommendation in 1973 that “no

new institutions for adults should be built and existing institutions for

juveniles should be closed.”17

This recommendation was based on their finding that “the prison,

the reformatory and the jail have achieved only a shocking record of

failure. There is overwhelming evidence that these institutions create

crime rather than prevent it.”18

These days, activists who advocate “a world without prisons” are

often dismissed as quacks, but only a few decades ago, the notion that

our society would be much better off without prisons—and that the

end of prisons was more or less inevitable—not only dominated main-

stream academic discourse in the field of criminology but also inspired

a national campaign by reformers demanding a moratorium on prison

construction. Marc Mauer, the executive director of the Sentencing

Project, notes that what is most remarkable about the moratorium

campaign in retrospect is the context of imprisonment at the time.

In 1972, fewer than 350,000 people were being held in prisons and

jails nationwide, compared with more than 2 million people today.

The rate of incarceration in 1972 was at a level so low that it no longer

seems in the realm of possibility, but for moratorium supporters, that

magnitude of imprisonment was egregiously high. “Supporters of the

moratorium effort can be forgiven for being so naïve,” Mauer suggests,

“since the prison expansion that was about to take place was unprec-

edented in human history.”19 No one imagined that the prison popula-

tion would more than quintuple in their lifetime. It seemed far more

likely that prisons would fade away.

I N T R O D U C T I O N 1 1

Far from fading away, it appears that prisons are here to stay. And

despite the unprecedented levels of incarceration in the African Amer-

ican community, the civil rights community is oddly quiet. One in

three young African American men will serve time in prison if current

trends continue, and in some cities more than half of all young adult

black men are currently under correctional control—in prison or jail,

on probation or parole.20 Yet mass incarceration tends to be catego-

rized as a criminal justice issue as opposed to a racial justice or civil

rights issue (or crisis).

The attention of civil rights advocates has been largely devoted to

other issues, such as affirmative action. During the past twenty years,

virtually every progressive, national civil rights organization in the

country has mobilized and rallied in defense of affirmative action. The

struggle to preserve affirmative action in higher education, and thus

maintain diversity in the nation’s most elite colleges and universities,

has consumed much of the attention and resources of the civil rights

community and dominated racial justice discourse in the mainstream

media, leading the general public to believe that affirmative action is

the main battlefront in U.S. race relations—even as our prisons fill

with black and brown men.

My own experience reflects this dynamic. When I first joined the

ACLU, no one imagined that the Racial Justice Project would focus its

attention on criminal justice reform. The ACLU was engaged in impor-

tant criminal justice reform work, but no one suspected that work would

eventually become central to the agenda of the Racial Justice Project.

The assumption was that the project would concentrate its efforts on

defending affirmative action. Shortly after leaving the ACLU, I joined

the board of directors of the Lawyers’ Committee for Civil Rights of the

San Francisco Bay Area. Although the organization included racial jus-

tice among its core priorities, reform of the criminal justice system was

not a major part of its racial justice work. It was not alone.

In January 2008, the Leadership Conference on Civil Rights—an

1 2 T H E N E W J I M   C R O W

organization composed of the leadership of more than 180 civil rights

organizations—sent a letter to its allies and supporters informing

them of a major initiative to document the voting record of members

of Congress. The letter explained that its forthcoming report would

show “how each representative and senator cast his or her vote on

some of the most important civil rights issues of 2007, including vot-

ing rights, affirmative action, immigration, nominations, education,

hate crimes, employment, health, housing, and poverty.” Criminal

justice issues did not make the list. That same broad-based coalition

organized a major conference in October 2007, entitled Why We Can’t

Wait: Reversing the Retreat on Civil Rights, which included panels

discussing school integration, employment discrimination, housing

and lending discrimination, economic justice, environmental justice,

disability rights, age discrimination, and immigrants’ rights. Not a

single panel was devoted to criminal justice reform.

The elected leaders of the African American community have a

much broader mandate than civil rights groups, but they, too, fre-

quently overlook criminal justice. In January 2009, for example, the

Congressional Black Caucus sent a letter to hundreds of community

and organization leaders who have worked with the caucus over the

years, soliciting general information about them and requesting that

they identify their priorities. More than thirty-five topics were listed

as areas of potential special interest, including taxes, defense, immi-

gration, agriculture, housing, banking, higher education, multimedia,

transportation and infrastructure, women, seniors, nutrition, faith ini-

tiatives, civil rights, census, economic security, and emerging leaders.

No mention was made of criminal justice. “Re-entry” was listed, but a

community leader who was interested in criminal justice reform had

to check the box labeled “other.”

This is not to say that important criminal justice reform work has

not been done. Civil rights advocates have organized vigorous chal-

lenges to specific aspects of the new caste system. One notable exam-

I N T R O D U C T I O N 13

ple is the successful challenge, led by the NAACP Legal Defense Fund,

to a racist drug sting operation in Tulia, Texas. The 1999 drug bust

incarcerated almost 15 percent of the black population of the town,

based on the uncorroborated false testimony of a single informant

hired by the sheriff of Tulia. More recently, civil rights groups around

the country have helped to launch legal attacks and vibrant grassroots

campaigns against felon disenfranchisement laws and have strenuous-

ly opposed discriminatory crack sentencing laws and guidelines, as

well as “zero tolerance” policies that effectively funnel youth of color

from schools to jails. The national ACLU recently developed a racial

justice program that includes criminal justice issues among its core

priorities and has created a promising Drug Law Reform Project. And

thanks to the aggressive advocacy of the ACLU, the NAACP, and other

civil rights organizations around the country, racial profiling is widely

condemned, even by members of law enforcement who once openly

embraced the practice.

Still, despite these significant developments, there seems to be a

lack of appreciation for the enormity of the crisis at hand. There is

no broad- based movement brewing to end mass incarceration and no

advocacy effort that approaches in scale the fight to preserve affirma-

tive action. There also remains a persistent tendency in the civil rights

community to treat the criminal justice system as just another institu-

tion infected with lingering racial bias. The NAACP’s website offers

one example. As recently as May 2008, one could find a brief introduc-

tion to the organization’s criminal justice work in the section entitled

Legal Department. The introduction explained that “despite the civil

rights victories of our past, racial prejudice still pervades the criminal

justice system.” Visitors to the website were urged to join the NAACP

in order to “protect the hard- earned civil rights gains of the past three

decades.” No one visiting the website would learn that the mass incar-

ceration of African Americans had already eviscerated many of the

hard-earned gains it urged its members to protect.

1 4 T H E N E W J I M   C R O W

Imagine if civil rights organizations and African American leaders

in the 1940s had not placed Jim Crow segregation at the forefront of

their racial justice agenda. It would have seemed absurd, given that

racial segregation was the primary vehicle of racialized social con-

trol in the United States during that period. This book argues that

mass incarceration is, metaphorically, the New Jim Crow and that all

those who care about social justice should fully commit themselves

to dismantling this new racial caste system. Mass incarceration—not

attacks on affirmative action or lax civil rights enforcement—is the

most damaging manifestation of the backlash against the Civil Rights

Movement. The popular narrative that emphasizes the deaths of slav-

ery and Jim Crow and celebrates the nation’s “triumph over race” with

the election of Barack Obama is dangerously misguided. The colorblind

public consensus that prevails in America today—i.e., the widespread

belief that race no longer matters—has blinded us to the realities of

race in our society and facilitated the emergence of a new caste system.

Clearly, much has changed in my thinking about the criminal justice

system since I passed that bright orange poster stapled to a telephone

pole ten years ago. For me, the new caste system is now as obvious as

my own face in the mirror. Like an optical illusion—one in which the

embedded image is impossible to see until its outline is identified—the

new caste system lurks invisibly within the maze of rationalizations

we have developed for persistent racial inequality. It is possible—quite

easy, in fact—never to see the embedded reality. Only after years of

working on criminal justice reform did my own focus finally shift,

and then the rigid caste system slowly came into view. Eventually it

became obvious. Now it seems odd that I could not see it before.

Knowing as I do the difficulty of seeing what most everyone insists

does not exist, I anticipate that this book will be met with skepticism

or something worse. For some, the characterization of mass incarcera-

I N T R O D U C T I O N 15

tion as a “racial caste system” may seem like a gross exaggeration, if not

hyperbole. Yes, we may have “classes” in the United States— vaguely

defined upper, middle, and lower classes—and we may even have an

“underclass” (a group so estranged from mainstream society that it is

no longer in reach of the mythical ladder of opportunity), but we do

not, many will insist, have anything in this country that resembles a

“caste.”

The aim of this book is not to venture into the long- running, vigor-

ous debate in the scholarly literature regarding what does and does not

constitute a caste system. I use the term racial caste in this book the

way it is used in common parlance to denote a stigmatized racial group

locked into an inferior position by law and custom. Jim Crow and slav-

ery were caste systems. So is our current system of mass incarceration.

It may be helpful, in attempting to understand the basic nature of

the new caste system, to think of the criminal justice system—the

entire collection of institutions and practices that comprise it—not

as an independent system but rather as a gateway into a much larger

system of racial stigmatization and permanent marginalization. This

larger system, referred to here as mass incarceration, is a system that

locks people not only behind actual bars in actual prisons, but also

behind virtual bars and virtual walls— walls that are invisible to the

naked eye but function nearly as effectively as Jim Crow laws once

did at locking people of color into a permanent second- class citizen-

ship. The term mass incarceration refers not only to the criminal justice

system but also to the larger web of laws, rules, policies, and customs

that control those labeled criminals both in and out of prison. Once

released from prison, people enter a hidden underworld of legalized

discrimination and permanent social exclusion. They are members of

America’s new undercaste.

The language of caste may well seem foreign or unfamiliar to some.

Public discussions about racial caste in America are relatively rare. We

1 6 T H E N E W J I M   C R O W

avoid talking about caste in our society because we are ashamed of our

racial history. We also avoid talking about race. We even avoid talk-

ing about class. Conversations about class are resisted in part because

there is a tendency to imagine that one’s class reflects upon one’s char-

acter. What is key to America’s understanding of class is the persistent

belief—despite all evidence to the contrary—that anyone, with the

proper discipline and drive, can move from a lower class to a higher

class. We recognize that mobility may be difficult, but the key to our

collective self-image is the assumption that mobility is always possible,

so failure to move up reflects on one’s character. By extension, the fail-

ure of a race or ethnic group to move up reflects very poorly on the

group as a whole.

What is completely missed in the rare public debates today about the

plight of African Americans is that a huge percentage of them are not

free to move up at all. It is not just that they lack opportunity, attend

poor schools, or are plagued by poverty. They are barred by law from

doing so. And the major institutions with which they come into con-

tact are designed to prevent their mobility. To put the matter starkly:

the current system of control permanently locks a huge percentage of

the African American community out of the mainstream society and

economy. The system operates through our criminal justice institu-

tions, but it functions more like a caste system than a system of crime

control. Viewed from this perspective, the so-called underclass is bet-

ter understood as an undercaste—a lower caste of individuals who

are permanently barred by law and custom from mainstream society.

Although this new system of racialized social control purports to be

colorblind, it creates and maintains racial hierarchy much as earlier

systems of control did. Like Jim Crow (and slavery), mass incarcera-

tion operates as a tightly networked system of laws, policies, customs,

and institutions that operate collectively to ensure the subordinate sta-

tus of a group defined largely by race.

This argument may be particularly hard to swallow given the elec-

I N T R O D U C T I O N 1 7

tion of Barack Obama. Many will wonder how a nation that just elected

its first black president could possibly have a racial caste system. It’s a

fair question. But as discussed in chapter 6, there is no inconsistency

whatsoever between the election of Barack Obama to the highest office

in the land and the existence of a racial caste system in the era of col-

orblindness. The current system of control depends on black excep-

tionalism; it is not disproved or undermined by it. Others may wonder

how a racial caste system could exist when most Americans—of all

colors— oppose race discrimination and endorse colorblindness. Yet as

we shall see in the pages that follow, racial caste systems do not require

racial hostility or overt bigotry to thrive. They need only racial indiffer-

ence, as Martin Luther King Jr. warned more than forty-five years ago.

The recent decisions by some state legislatures, most notably New

York’s, to repeal or reduce mandatory drug sentencing laws have led

some to believe that the system of racial control described in this book

is already fading away. Such a conclusion, I believe, is a serious mis-

take. Many of the states that have reconsidered their harsh sentencing

schemes have done so not out of concern for the lives and families

that have been destroyed by these laws or the racial dimensions of

the drug war, but out of concern for bursting state budgets in a time

of economic recession. In other words, the racial ideology that gave

rise to these laws remains largely undisturbed. Changing economic

conditions or rising crime rates could easily result in a reversal of for-

tunes for those who commit drug crimes, particularly if the people

who use or sell drugs are perceived to be black and brown. Equally

important to understand is this: Merely reducing sentence length, by

itself, does not disturb the basic architecture of the New Jim Crow. So

long as large numbers of African Americans continue to be arrested

and labeled drug criminals, they will continue to be relegated to a per-

manent second- class status upon their release, no matter how much

(or how little) time they spend behind bars. The system of mass incar-

ceration is based on the prison label, not prison time.

1 8 T H E N E W J I M   C R O W

Skepticism about the claims made here is warranted. There are

important differences, to be sure, among mass incarceration, Jim Crow,

and slavery—the three major racialized systems of control adopted in

the United States to date. Failure to acknowledge the relevant differ-

ences, as well as their implications, would be a disservice to racial

justice discourse. Many of the differences are not as dramatic as they

initially appear, however; others serve to illustrate the ways in which

systems of racialized social control have managed to morph, evolve,

and adapt to changes in the political, social, and legal context over

time. Ultimately, I believe that the similarities between these systems

of control overwhelm the differences and that mass incarceration, like

its predecessors, has been largely immunized from legal challenge. If

this claim is substantially correct, the implications for racial justice

advocacy are profound. With the benefit of hindsight, surely we can

see that piecemeal policy reform or litigation alone would have been

a futile approach to dismantling Jim Crow segregation. While those

strategies certainly had their place, the Civil Rights Act of 1964 and

the concomitant cultural shift would never have occurred without the

cultivation of a critical political consciousness in the African Amer-

ican community and the widespread, strategic activism that flowed

from it. Likewise, the notion that the New Jim Crow can ever be dis-

mantled through traditional litigation and policy-reform strategies

that are wholly disconnected from a major social movement seems

fundamentally misguided.

Such a movement is impossible, though, if those most committed to

abolishing racial hierarchy continue to talk and behave as if a state-

sponsored racial caste system no longer exists. If we continue to tell

ourselves the popular myths about racial progress or, worse yet, if we

say to ourselves that the problem of mass incarceration is just too big,

too daunting for us to do anything about and that we should instead

direct our energies to battles that might be more easily won, history will

judge us harshly. A human rights nightmare is occurring on our watch.

I N T R O D U C T I O N 19

A new social consensus must be forged about race and the role of

race in defining the basic structure of our society if we hope ever to

abolish the New Jim Crow. This new consensus must begin with dia-

logue, a conversation that fosters a critical consciousness, a key pre-

requisite to effective social action. This book is an attempt to ensure

that the conversation does not end with nervous laughter.

It is not possible to write a relatively short book that explores all

aspects of the phenomenon of mass incarceration and its implications

for racial justice. No attempt has been made to do so here. This book

paints with a broad brush, and as a result, many important issues

have not received the attention they deserve. For example, relatively

little is said here about the unique experience of women, Latinos, and

immigrants in the criminal justice system, though these groups are

particularly vulnerable to the worst abuses and suffer in ways that are

important and distinct. This book focuses on the experience of Afri-

can American men in the new caste system. I hope other scholars and

advocates will pick up where the book leaves off and develop the cri-

tique more fully or apply the themes sketched here to other groups and

other contexts.

What this book is intended to do—the only thing it is intended to

do—is to stimulate a much- needed conversation about the role of the

criminal justice system in creating and perpetuating racial hierarchy in

the United States. The fate of millions of people— indeed the future of

the black community itself—may depend on the willingness of those

who care about racial justice to re- examine their basic assumptions

about the role of the criminal justice system in our society. The fact

that more than half of the young black men in many large American

cities are currently under the control of the criminal justice system (or

saddled with criminal records) is not—as many argue—just a symp-

tom of poverty or poor choices, but rather evidence of a new racial

caste system at work.

2 0 T H E N E W J I M   C R O W

Chapter 1 begins our journey. It briefly reviews the history of racial-

ized social control in the United States, answering the basic question:

How did we get here? The chapter describes the control of African

Americans through racial caste systems, such as slavery and Jim Crow,

which appear to die but then are reborn in new form, tailored to the

needs and constraints of the time. As we shall see, there is a certain

pattern to the births and deaths of racial caste in America. Time and

again, the most ardent proponents of racial hierarchy have succeeded

in creating new caste systems by triggering a collapse of resistance

across the political spectrum. This feat has been achieved largely by

appealing to the racism and vulnerability of lower-class whites, a group

of people who are understandably eager to ensure that they never find

themselves trapped at the bottom of the American totem pole. This

pattern, dating back to slavery, has birthed yet another racial caste

system in the United States: mass incarceration.

The structure of mass incarceration is described in some detail in

chapter 2, with a focus on the War on Drugs. Few legal rules mean-

ingfully constrain the police in the drug war, and enormous finan-

cial incentives have been granted to law enforcement to engage in

mass drug arrests through military-style tactics. Once swept into the

system, one’s chances of ever being truly free are slim, often to the

vanishing point. Defendants are typically denied meaningful legal rep-

resentation, pressured by the threat of lengthy sentences into a plea

bargain, and then placed under formal control—in prison or jail, on

probation or parole. Upon release, people with criminal records are

discriminated against, legally, for the rest of their lives, and most will

eventually return to the system’s formal control. They are members of

America’s new undercaste.

Chapter 3 turns our attention to the role of race in the U.S. criminal

justice system. It describes the method to the madness—how a formally

race-neutral criminal justice system can manage to round up, arrest,

and imprison an extraordinary number of black and brown men, when

I N T R O D U C T I O N 2 1

people of color are actually no more likely to be guilty of drug crimes

and many other offenses than whites. This chapter debunks the notion

that rates of black imprisonment can be explained by crime rates and

identifies the huge racial disparities at every stage of the criminal justice

process—from the initial stop, search, and arrest to the plea bargaining

and sentencing phases. In short, the chapter explains how the legal rules

that structure the system guarantee discriminatory results. These legal

rules ensure that the undercaste is overwhelmingly black and brown.

Chapter 4 considers how the caste system operates once people are

released from prison. In many respects, release from prison does not

represent the beginning of freedom but instead a cruel new phase of

stigmatization and control. Myriad laws, rules, and regulations dis-

criminate against people with criminal records and effectively prevent

their meaningful reintegration into the mainstream economy and soci-

ety. I argue that the shame and stigma of the “prison label” are, in

many respects, more damaging to the African American community

than the shame and stigma associated with Jim Crow. The criminaliza-

tion and demonization of black men have turned the black community

against itself, unraveling community and family relationships, deci-

mating networks of mutual support, and intensifying the shame and

self-hate experienced by the current pariah caste.

The many parallels between mass incarceration and Jim Crow are

explored in chapter 5. The most obvious parallel is legalized discrimi-

nation. Like Jim Crow, mass incarceration marginalizes large segments

of the African American community, segregates them physically (in

prisons, jails, and ghettos), and then authorizes discrimination against

them in voting, employment, housing, education, public benefits, and

jury service. The federal court system has effectively immunized the

current system from challenges on the grounds of racial bias, much

as earlier systems of control were protected and endorsed by the U.S.

Supreme Court. The parallels do not end there, however. Mass incar-

ceration, like Jim Crow, helps to define the meaning and significance of

2 2 T H E N E W J I M   C R O W

race in America. Indeed, the stigma of criminality functions in much

the same way that the stigma of race once did. It justifies a legal, social,

and economic boundary between “us” and “them.” Chapter 5 also

explores some of the differences among slavery, Jim Crow, and mass

incarceration, most significantly the fact that mass incarceration is

designed to warehouse a population deemed disposable—unnecessary

to the functioning of the new global economy—while earlier systems

of control were designed to exploit and control black labor. In addi-

tion, the chapter discusses the experience of white people in this new

caste system; although they have not been the primary targets of the

drug war, they have been harmed by it—a powerful illustration of

how a racial state can harm people of all colors. Finally, this chap-

ter responds to skeptics who claim that mass incarceration cannot be

understood as a racial caste system because many “get tough on crime”

policies are supported by African Americans. Many of these claims, I

note, are no more persuasive today than arguments made a hundred

years ago by blacks and whites who claimed that racial segregation

simply reflected “reality,” not racial animus, and that African Amer-

icans would be better off not challenging the Jim Crow system but

should focus instead on improving themselves within it. Throughout

our history, there have been African Americans who, for a variety of

reasons, have defended or been complicit with the prevailing system

of control.

Chapter 6 reflects on what acknowledging the presence of the New

Jim Crow means for the future of civil rights advocacy. I argue that

nothing short of a major social movement can successfully dismantle

the new caste system. Meaningful reforms can be achieved without

such a movement, but unless the public consensus supporting the cur-

rent system is completely overturned, the basic structure of the new

caste system will remain intact. Building a broad-based social move-

ment, however, is not enough. It is not nearly enough to persuade main-

stream voters that we have relied too heavily on incarceration or that

I N T R O D U C T I O N 2 3

drug abuse is a public health problem, not a crime. If the movement

that emerges to challenge mass incarceration fails to confront squarely

the critical role of race in the basic structure of our society, and if it

fails to cultivate an ethic of genuine care, compassion, and concern for

every human being—of every class, race, and nationality— within our

nation’s borders (including poor whites, who are often pitted against

poor people of color), the collapse of mass incarceration will not mean

the death of racial caste in America. Inevitably a new system of racial-

ized social control will emerge—one that we cannot foresee, just as

the current system of mass incarceration was not predicted by any-

one thirty years ago. No task is more urgent for racial justice advo-

cates today than ensuring that America’s current racial caste system

is its last.

[T]he slave went free; stood a brief moment in the sun; then moved

back again toward slavery.

—W.E.B. Du Bois, Black Reconstruction in America

For more than one hundred years, scholars have written about the illusory nature of the Emancipation Proclamation. President Abraham Lincoln issued a declaration purporting to free slaves held in

Southern Confederate states, but not a single black slave was actually

free to walk away from a master in those states as a result. A civil war

had to be won first, hundreds of thousands of lives lost, and then—

only then—were slaves across the South set free. Even that freedom

proved illusory, though. As W.E.B. Du Bois eloquently reminds us, for-

mer slaves had “a brief moment in the sun” before they were returned

to a status akin to slavery. Constitutional amendments guaranteeing

African Americans “equal protection of the laws” and the right to vote

proved as impotent as the Emancipation Proclamation once a white

backlash against Reconstruction gained steam. Black people found

themselves yet again powerless and relegated to convict leasing camps

that were, in many ways, worse than slavery. Sunshine gave way to

darkness, and the Jim Crow system of segregation emerged—a system

1 T he R e bi r t h of C a s te

2 6 T H E N E W J I M   C R O W

that put black people nearly back where they began, in a subordinate

racial caste.

Few find it surprising that Jim Crow arose following the collapse of

slavery. The development is described in history books as regrettable

but predictable, given the virulent racism that gripped the South and

the political dynamics of the time. What is remarkable is that hardly

anyone seems to imagine that similar political dynamics may have

produced another caste system in the years following the collapse of

Jim Crow—one that exists today. The story that is told during Black

History Month is one of triumph; the system of racial caste is offi-

cially dead and buried. Suggestions to the contrary are frequently met

with shocked disbelief. The standard reply is: “How can you say that a

racial caste system exists today? Just look at Barack Obama! Just look

at Oprah Winfrey!”

The fact that some African Americans have experienced great suc-

cess in recent years does not mean that something akin to a racial caste

system no longer exists. No caste system in the United States has ever

governed all black people; there have always been “free blacks” and

black success stories, even during slavery and Jim Crow. The superla-

tive nature of individual black achievement today in formerly white

domains is a good indicator that the old Jim Crow is dead, but it does

not necessarily mean the end of racial caste. If history is any guide, it

may have simply taken a different form.

Any candid observer of American racial history must acknowledge

that racism is highly adaptable. The rules and reasons the political

system employs to enforce status relations of any kind, including racial

hierarchy, evolve and change as they are challenged. The valiant efforts

to abolish slavery and Jim Crow and to achieve greater racial equal-

ity have brought about significant changes in the legal framework of

American society—new “rules of the game,” so to speak. These new

rules have been justified by new rhetoric, new language, and a new

social consensus, while producing many of the same results. This

T H E R E B I R T H O F C A S T E 2 7

dynamic, which legal scholar Reva Siegel has dubbed “preservation

through transformation,” is the process through which white privilege

is maintained, though the rules and rhetoric change.1

This process, though difficult to recognize at any given moment, is

easier to see in retrospect. Since the nation’s founding, African Ameri-

cans repeatedly have been controlled through institutions such as slav-

ery and Jim Crow, which appear to die but then are reborn in new

form, tailored to the needs and constraints of the time. As described

in the pages that follow, there is a certain pattern to this cycle. Follow-

ing the collapse of each system of control, there has been a period of

confusion—transition—in which those who are most committed to

racial hierarchy search for new means to achieve their goals within

the rules of the game as currently defined. It is during this period of

uncertainty that the backlash intensifies and a new form of racialized

social control begins to take hold. The adoption of the new system

of control is never inevitable, but to date it has never been avoided.

The most ardent proponents of racial hierarchy have consistently suc-

ceeded in implementing new racial caste systems by triggering a col-

lapse of resistance across the political spectrum. This feat has been

achieved largely by appealing to the racism and vulnerability of lower-

class whites, a group of people who are understandably eager to ensure

that they never find themselves trapped at the bottom of the American

hierarchy.

The emergence of each new system of control may seem sudden, but

history shows that the seeds are planted long before each new institu-

tion begins to grow. For example, although it is common to think of the

Jim Crow regime following immediately on the heels of Reconstruc-

tion, the truth is more complicated. And while it is generally believed

that the backlash against the Civil Rights Movement is defined pri-

marily by the rollback of affirmative action and the undermining of

federal civil rights legislation by a hostile judiciary, the seeds of the

new system of control—mass incarceration—were planted during the

2 8 T H E N E W J I M   C R O W

Civil Rights Movement itself, when it became clear that the old caste

system was crumbling and a new one would have to take its place.

With each reincarnation of racial caste, the new system, as sociolo-

gist Loïc Wacquant puts it, “is less total, less capable of encompassing

and controlling the entire race.”2 However, any notion that this evolu-

tion reflects some kind of linear progress would be misguided, for it is

not at all obvious that it would be better to be incarcerated for life for

a minor drug offense than to live with one’s family, earning an honest

wage under the Jim Crow regime—notwithstanding the ever-present

threat of the Klan. Moreover, as the systems of control have evolved,

they have become perfected, arguably more resilient to challenge, and

thus capable of enduring for generations to come. The story of the

political and economic underpinnings of the nation’s founding sheds

some light on these recurring themes in our history and the reasons

new racial caste systems continue to be born.

The Birth of Slavery

Back there, before Jim Crow, before the invention of the Negro or the

white man or the words and concepts to describe them, the Colonial

population consisted largely of a great mass of white and black bonds-

men, who occupied roughly the same economic category and were

treated with equal contempt by the lords of the plantations and legis-

latures. Curiously unconcerned about their color, these people worked

together and relaxed together.3

—Lerone Bennett Jr.

The concept of race is a relatively recent development. Only in the

past few centuries, owing largely to European imperialism, have

the world’s people been classified along racial lines.4 Here, in America,

the idea of race emerged as a means of reconciling chattel slavery—

T H E R E B I R T H O F C A S T E 2 9

as well as the extermination of American Indians—with the ideals of

freedom preached by whites in the new colonies.

In the early colonial period, when settlements remained relative-

ly small, indentured servitude was the dominant means of securing

cheap labor. Under this system, whites and blacks struggled to survive

against a common enemy, what historian Lerone Bennett Jr. describes

as “the big planter apparatus and a social system that legalized terror

against black and white bondsmen.”5 Initially, blacks brought to this

country were not all enslaved; many were treated as indentured ser-

vants. As plantation farming expanded, particularly tobacco and cot-

ton farming, demand increased greatly for both labor and land.

The demand for land was met by invading and conquering larger

and larger swaths of territory. American Indians became a growing

impediment to white European “progress,” and during this period,

the images of American Indians promoted in books, newspapers,

and magazines became increasingly negative. As sociologists Keith

Kilty and Eric Swank have observed, eliminating “savages” is less

of a moral problem than eliminating human beings, and therefore

American Indians came to be understood as a lesser race—uncivilized

savages—thus providing a justification for the extermination of the

native peoples.6

The growing demand for labor on plantations was met through slav-

ery. American Indians were considered unsuitable as slaves, largely

because native tribes were clearly in a position to fight back. The fear

of raids by Indian tribes led plantation owners to grasp for an alterna-

tive source of free labor. European immigrants were also deemed poor

candidates for slavery, not because of their race, but rather because

they were in short supply and enslavement would, quite naturally,

interfere with voluntary immigration to the new colonies. Planta-

tion owners thus viewed Africans, who were relatively powerless,

as the ideal slaves. The systematic enslavement of Africans, and the

3 0 T H E N E W J I M   C R O W

rearing of their children under bondage, emerged with all deliberate

speed—quickened by events such as Bacon’s Rebellion.

Nathaniel Bacon was a white property owner in Jamestown, Virgin-

ia, who managed to unite slaves, indentured servants, and poor whites

in a revolutionary effort to overthrow the planter elite. Although slaves

clearly occupied the lowest position in the social hierarchy and suf-

fered the most under the plantation system, the condition of inden-

tured whites was barely better, and the majority of free whites lived in

extreme poverty. As explained by historian Edmund Morgan, in colo-

nies like Virginia, the planter elite, with huge land grants, occupied a

vastly superior position to workers of all colors.7 Southern colonies did

not hesitate to invent ways to extend the terms of servitude, and the

planter class accumulated uncultivated lands to restrict the options of

free workers. The simmering resentment against the planter class cre-

ated conditions that were ripe for revolt.

Varying accounts of Bacon’s rebellion abound, but the basic facts are

these: Bacon developed plans in 1675 to seize Native American lands

in order to acquire more property for himself and others and nullify

the threat of Indian raids. When the planter elite in Virginia refused

to provide militia support for his scheme, Bacon retaliated, leading an

attack on the elite, their homes, and their property. He openly con-

demned the rich for their oppression of the poor and inspired an alli-

ance of white and black bond laborers, as well as slaves, who demanded

an end to their servitude. The attempted revolution was ended by force

and false promises of amnesty. A number of the people who participat-

ed in the revolt were hanged. The events in Jamestown were alarming

to the planter elite, who were deeply fearful of the multiracial alliance

of bond workers and slaves. Word of Bacon’s Rebellion spread far and

wide, and several more uprisings of a similar type followed.

In an effort to protect their superior status and economic position,

the planters shifted their strategy for maintaining dominance. They

abandoned their heavy reliance on indentured servants in favor of

T H E R E B I R T H O F C A S T E 3 1

the importation of more black slaves. Instead of importing English-

speaking slaves from the West Indies, who were more likely to be

familiar with European language and culture, many more slaves were

shipped directly from Africa. These slaves would be far easier to con-

trol and far less likely to form alliances with poor whites.

Fearful that such measures might not be sufficient to protect their

interests, the planter class took an additional precautionary step, a

step that would later come to be known as a “racial bribe.” Deliber-

ately and strategically, the planter class extended special privileges

to poor whites in an effort to drive a wedge between them and black

slaves. White settlers were allowed greater access to Native Ameri-

can lands, white servants were allowed to police slaves through slave

patrols and militias, and barriers were created so that free labor would

not be placed in competition with slave labor. These measures effec-

tively eliminated the risk of future alliances between black slaves and

poor whites. Poor whites suddenly had a direct, personal stake in the

existence of a race- based system of slavery. Their own plight had not

improved by much, but at least they were not slaves. Once the planter

elite split the labor force, poor whites responded to the logic of their

situation and sought ways to expand their racially privileged position.8

By the mid-1770s, the system of bond labor had been thoroughly

transformed into a racial caste system predicated on slavery. The

degraded status of Africans was justified on the ground that Negros,

like the Indians, were an uncivilized lesser race, perhaps even more

lacking in intelligence and laudable human qualities than the red-

skinned natives. The notion of white supremacy rationalized the

enslavement of Africans, even as whites endeavored to form a new

nation based on the ideals of equality, liberty, and justice for all. Before

democracy, chattel slavery in America was born.

It may be impossible to overstate the significance of race in defining

the basic structure of American society. The structure and content of

the original Constitution was based largely on the effort to preserve a

3 2 T H E N E W J I M   C R O W

racial caste system—slavery—while at the same time affording politi-

cal and economic rights to whites, especially propertied whites. The

Southern slaveholding colonies would agree to form a union only on

the condition that the federal government would not be able to inter-

fere with the right to own slaves. Northern white elites were sympa-

thetic to the demand for their “property rights” to be respected, as

they, too, wanted the Constitution to protect their property interests.

As James Madison put it, the nation ought to be constituted “to protect

the minority of the opulent against the majority.”9 Consequently, the

Constitution was designed so the federal government would be weak,

not only in its relationship to private property, but also in relation-

ship to the rights of states to conduct their own affairs. The language

of the Constitution itself was deliberately colorblind (the words slave

or Negro were never used), but the document was built upon a com-

promise regarding the prevailing racial caste system. Federalism—the

division of power between the states and the federal government—was

the device employed to protect the institution of slavery and the politi-

cal power of slaveholding states. Even the method for determining pro-

portional representation in Congress and identifying the winner of

a presidential election (the Electoral College) were specifically devel-

oped with the interest of slaveholders in mind. Under the terms of our

country’s founding document, slaves were defined as three-fifths of a

person not a real, whole human being. Upon this racist fiction rests the

entire structure of American democracy.

The Death of Slavery

The history of racial caste in the United States would end with the

Civil War if the idea of race and racial difference had died when the

institution of slavery was put to rest. But during the four centuries in

which slavery flourished, the idea of race flourished as well. Indeed,

the notion of racial difference—specifically the notion of white

T H E R E B I R T H O F C A S T E 3 3

supremacy— proved far more durable than the institution that gave

birth to it.

White supremacy, over time, became a religion of sorts. Faith in

the idea that people of the African race were bestial, that whites were

inherently superior, and that slavery was, in fact, for blacks’ own good,

served to alleviate the white conscience and reconcile the tension

between slavery and the democratic ideals espoused by whites in the

so- called New World. There was no contradiction in the bold claim

made by Thomas Jefferson in the Declaration of Independence that

“all men are created equal” if Africans were not really people. Racism

operated as a deeply held belief system based on “truths” beyond ques-

tion or doubt. This deep faith in white supremacy not only justified an

economic and political system in which plantation owners acquired

land and great wealth through the brutality, torture, and coercion of

other human beings; it also endured, like most articles of faith, long

after the historical circumstances that gave rise to the religion passed

away. In Wacquant’s words: “Racial division was a consequence, not a

precondition of slavery, but once it was instituted it became detached

from its initial function and acquired a social potency all its own.”10

After the death of slavery, the idea of race lived on.

One of the most compelling accounts of the postemancipation peri-

od is The Strange Career of Jim Crow, written by C. Vann Woodward in

1955.11 The book continues to be the focal point of study and debate by

scholars and was once described by Martin Luther King Jr. as the “his-

torical bible of the Civil Rights Movement.” As Woodward tells the sto-

ry, the end of slavery created an extraordinary dilemma for Southern

white society. Without the labor of former slaves, the region’s economy

would surely collapse, and without the institution of slavery, there was

no longer a formal mechanism for maintaining racial hierarchy and

preventing “amalgamation” with a group of people considered intrinsi-

cally inferior and vile. This state of affairs produced a temporary anar-

chy and a state of mind bordering on hysteria, particularly among the

3 4 T H E N E W J I M   C R O W

planter elite. But even among poor whites, the collapse of slavery was

a bitter pill. In the antebellum South, the lowliest white person at least

possessed his or her white skin—a badge of superiority over even the

most skilled slave or prosperous free African American.

While Southern whites—poor and rich alike—were utterly out-

raged by emancipation, there was no obvious solution to the dilemma

they faced. Following the Civil War, the economic and political infra-

structure of the South was in shambles. Plantation owners were sud-

denly destitute, and state governments, shackled by war debt, were

penniless. Large amounts of real estate and other property had been

destroyed in the war, industry was disorganized, and hundreds of

thousands of men had been killed or maimed. With all of this went the

demoralizing effect of an unsuccessful war and the extraordinary chal-

lenges associated with rebuilding new state and local governments.

Add to all this the sudden presence of 4 million newly freed slaves, and

the picture becomes even more complicated. Southern whites, Wood-

ward explains, strongly believed that a new system of racial control

was clearly required, but it was not immediately obvious what form it

should take.

Under slavery, the racial order was most effectively maintained by

a large degree of contact between slave owners and slaves, thus maxi-

mizing opportunities for supervision and discipline, and minimizing

the potential for active resistance or rebellion. Strict separation of the

races would have threatened slaveholders’ immediate interests and

was, in any event, wholly unnecessary as a means of creating social

distance or establishing the inferior status of slaves.

Following the Civil War, it was unclear what institutions, laws,

or customs would be necessary to maintain white control now that

slavery was gone. Nonetheless, as numerous historians have shown,

the development of a new racial order became the consuming passion

for most white Southerners. Rumors of a great insurrection terrified

whites, and blacks increasingly came to be viewed as menacing and

T H E R E B I R T H O F C A S T E 3 5

dangerous. In fact, the current stereotypes of black men as aggressive,

unruly predators can be traced to this period, when whites feared that

an angry mass of black men might rise up and attack them or rape

their women.

Equally worrisome was the state of the economy. Former slaves lit-

erally walked away from their plantations, causing panic and outrage

among plantation owners. Large numbers of former slaves roamed the

highways in the early years after the war. Some converged on towns

and cities; others joined the federal militia. Most white people believed

African Americans lacked the proper motivation to work, prompting

the provisional Southern legislatures to adopt the notorious black

codes. As expressed by one Alabama planter: “We have the power to

pass stringent police laws to govern the Negroes—this is a blessing—

for they must be controlled in some way or white people cannot live

among them.”12 While some of these codes were intended to establish

systems of peonage resembling slavery, others foreshadowed Jim Crow

laws by prohibiting, among other things, interracial seating in the

first-class sections of railroad cars and by segregating schools.

Although the convict laws enacted during this period are rarely seen

as part of the black codes, that is a mistake. As explained by histo-

rian William Cohen, “the main purpose of the codes was to control

the freedmen, and the question of how to handle convicted black law

breakers was very much at the center of the control issue.”13 Nine South-

ern states adopted vagrancy laws—which essentially made it a crimi-

nal offense not to work and were applied selectively to blacks—and

eight of those states enacted convict laws allowing for the hiring-out

of people in county prisons to plantation owners and private compa-

nies. People trapped in this system were forced to work for little or no

pay. One vagrancy act specifically provided that “all free negroes and

mulattoes over the age of eighteen” must have written proof of a job at

the beginning of every year. Those found with no lawful employment

were deemed vagrants and convicted. Clearly, the purpose of the black

3 6 T H E N E W J I M   C R O W

codes in general and the vagrancy laws in particular was to establish

another system of forced labor. In W.E.B. Du Bois’s words: “The Codes

spoke for themselves. . . . No open-minded student can read them with-

out being convinced they meant nothing more nor less than slavery in

daily toil.”14

Ultimately, the black codes were overturned, and a slew of federal

civil rights legislation protecting the newly freed slaves was passed

during the relatively brief but extraordinary period of black advance-

ment known as the Reconstruction Era. The impressive legislative

achievements of this period include the Thirteenth Amendment, abol-

ishing slavery; the Civil Rights Act of 1866, bestowing full citizenship

upon African Americans; the Fourteenth Amendment, prohibiting

states from denying citizens due process and “equal protection of

the laws”; the Fifteenth Amendment, providing that the right to vote

should not be denied on account of race; and the Ku Klux Klan Acts,

which, among other things, declared interference with voting a federal

offense and the violent infringement of civil rights a crime. The new

legislation also provided for federal supervision of voting and autho-

rized the president to send the army and suspend the writ of habeas

corpus in districts declared to be in a state of insurrection against the

federal government.

In addition to federal civil rights legislation, the Reconstruction Era

brought the expansion of the Freedmen’s Bureau, the agency charged

with the responsibility of providing food, clothing, fuel, and other

forms of assistance to destitute former slaves. A public education

system emerged in the South, which afforded many blacks (and poor

whites) their first opportunity to learn to read and write.

While the Reconstruction Era was fraught with corruption and argu-

ably doomed by the lack of land reform, the sweeping economic and

political developments in that period did appear, at least for a time, to

have the potential to seriously undermine, if not completely eradicate,

the racial caste system in the South. With the protection of federal

T H E R E B I R T H O F C A S T E 3 7

troops, African Americans began to vote in large numbers and seize

control, in some areas, of the local political apparatus. Literacy rates

climbed, and educated blacks began to populate legislatures, open

schools, and initiate successful businesses. In 1867, at the dawn of the

Reconstruction Era, no black man held political office in the South,

yet three years later, at least 15 percent of all Southern elected officials

were black. This is particularly extraordinary in light of the fact that

fifteen years after the passage of the Voting Rights Act of 1965—the

high water mark of the Civil Rights Movement— fewer than 8 percent

of all Southern elected officials were black.15

At the same time, however, many of the new civil rights laws were

proving largely symbolic.16 Notably absent from the Fifteenth Amend-

ment, for example, was language prohibiting the states from imposing

educational, residential, or other qualifications for voting, thus leav-

ing the door open to the states to impose poll taxes, literacy tests, and

other devices to prevent blacks from voting. Other laws revealed them-

selves as more an assertion of principle than direct federal intervention

into Southern affairs, because enforcement required African Ameri-

cans to take their cases to federal courts, a costly and time-consuming

procedure that was a practical impossibility for the vast majority of

those who had claims. Most blacks were too poor to sue to enforce

their civil rights, and no organization like the NAACP yet existed to

spread the risks and costs of litigation. Moreover, the threat of vio-

lence often deterred blacks from pressing legitimate claims, making

the “civil rights” of former slaves largely illusory—existing on paper

but rarely to be found in real life.

Meanwhile, the separation of the races had begun to emerge as a com-

prehensive pattern throughout the South, driven in large part by the

rhetoric of the planter elite, who hoped to reestablish a system of control

that would ensure a low-paid, submissive labor force. Racial segregation

had actually begun years earlier in the North, as an effort to prevent

race-mixing and preserve racial hierarchy following the abolition of

3 8 T H E N E W J I M   C R O W

Northern slavery. It had never developed, however, into a comprehen-

sive system—operating instead largely as a matter of custom, enforced

with varying degrees of consistency. Even among those most hostile to

Reconstruction, few would have predicted that racial segregation would

soon evolve into a new racial caste system as stunningly comprehensive

and repressive as the one that came to be known simply as Jim Crow.

The Birth of Jim Crow

The backlash against the gains of African Americans in the Recon-

struction Era was swift and severe. As African Americans obtained

political power and began the long march toward greater social and

economic equality, whites reacted with panic and outrage. Southern

conservatives vowed to reverse Reconstruction and sought the “abo-

lition of the Freedmen’s Bureau and all political instrumentalities

designed to secure Negro supremacy.”17 Their campaign to “redeem”

the South was reinforced by a resurgent Ku Klux Klan, which fought

a terrorist campaign against Reconstruction governments and local

leaders, complete with bombings, lynchings, and mob violence.

The terrorist campaign proved highly successful. “Redemption”

resulted in the withdrawal of federal troops from the South and the

effective abandonment of African Americans and all those who had

fought for or supported an egalitarian racial order. The federal govern-

ment no longer made any effort to enforce federal civil rights legisla-

tion, and funding for the Freedmen’s Bureau was slashed to such a

degree that the agency became virtually defunct.

Once again, vagrancy laws and other laws defining activities such

as “mischief ” and “insulting gestures” as crimes were enforced vig-

orously against blacks. The aggressive enforcement of these criminal

offenses opened up an enormous market for convict leasing, in which

prisoners were contracted out as laborers to the highest private bidder.

Douglas Blackmon, in Slavery by Another Name, describes how tens

T H E R E B I R T H O F C A S T E 3 9

of thousands of African Americans were arbitrarily arrested during

this period, many of them hit with court costs and fines, which had

to be worked off in order to secure their release.18 With no means to

pay off their “debts,” people in prisons were sold as forced laborers to

lumber camps, brickyards, railroads, farms, plantations, and dozens

of corporations throughout the South. Death rates were shockingly

high, for the private contractors had no interest in the health and well-

being of their laborers, unlike the earlier slave-owners who needed

their slaves, at a minimum, to be healthy enough to survive hard labor.

Laborers were subject to almost continual lashing by long horse whips,

and those who collapsed due to injuries or exhaustion were often left

to die.

Convicts had no meaningful legal rights at this time and no effective

redress. They were understood, quite literally, to be slaves of the state.

The Thirteenth Amendment to the U.S. Constitution had abolished

slavery but allowed one major exception: slavery remained appropri-

ate as punishment for a crime. In a landmark decision by the Virginia

Supreme Court, Ruffin v. Commonwealth, issued at the height of South-

ern Redemption, the court put to rest any notion that convicts were

legally distinguishable from slaves:

For a time, during his service in the penitentiary, he is in

a state of penal servitude to the State. He has, as a con-

sequence of his crime, not only forfeited his liberty, but

all his personal rights except those which the law in its

humanity accords to him. He is for the time being a slave

of the State. He is civiliter mortus; and his estate, if he has

any, is administered like that of a dead man.19

The state of Mississippi eventually moved from hiring convict labor

to organizing its own convict labor camp, known as Parchman Farm.

It was not alone. During the decade following Redemption, the convict

4 0 T H E N E W J I M   C R O W

population grew ten times faster than the general population: “Pris-

oners became younger and blacker, and the length of their sentences

soared.”20 It was the nation’s first prison boom and, as they are today,

those taken prisoner were disproportionately black. After a brief peri-

od of progress during Reconstruction, African Americans found them-

selves, once again, virtually defenseless. The criminal justice system

was strategically employed to force African Americans back into a sys-

tem of extreme repression and control, a tactic that would continue to

prove successful for generations to come. Even as convict leasing faded

away, strategic forms of exploitation and repression emerged anew. As

Blackmon notes: “The apparent demise . . . of leasing prisoners seemed

a harbinger of a new day. But the harsher reality of the South was that

the new post–Civil War neoslavery was evolving—not disappearing.”21

Redemption marked a turning point in the quest by dominant

whites for a new racial equilibrium, a racial order that would protect

their economic, political, and social interests in a world without slav-

ery. Yet a clear consensus among whites about what the new racial

order should be was still lacking. The Redeemers who overthrew

Reconstruction were inclined to retain such segregation practices as

had already emerged, but they displayed no apparent disposition to

expand or universalize the system.

Three alternative philosophies of race relations were put forward to

compete for the region’s support, all of which rejected the doctrines of

extreme racism espoused by some Redeemers: liberalism, conserva-

tism, and radicalism.22 The liberal philosophy of race relations empha-

sized the stigma of segregation and the hypocrisy of a government

that celebrates freedom and equality yet denies both on account of

race. This philosophy, born in the North, never gained much traction

among Southern whites or blacks.

The conservative philosophy, by contrast, attracted wide support

and was implemented in various contexts over a considerable period

of time. Conservatives blamed liberals for pushing blacks ahead of

T H E R E B I R T H O F C A S T E 4 1

their proper station in life and placing blacks in positions they were

unprepared to fill, a circumstance that had allegedly contributed to

their downfall. They warned blacks that some Redeemers were not

satisfied with having decimated Reconstruction, and were prepared

to wage an aggressive war against blacks throughout the South. With

some success, the conservatives reached out to African American vot-

ers, reminding them that they had something to lose as well as gain

and that the liberals’ preoccupation with political and economic equal-

ity presented the danger of losing all that blacks had so far gained.

The radical philosophy offered, for many African Americans, the

most promise. It was predicated on a searing critique of large corpora-

tions, particularly railroads, and the wealthy elite in the North and

South. The radicals of the late nineteenth century, who later formed

the Populist Party, viewed the privileged classes as conspiring to

keep poor whites and blacks locked into a subordinate political and

economic position. For many African American voters, the Popu-

list approach was preferable to the paternalism of liberals. Populists

preached an “equalitarianism of want and poverty, the kinship of a

common grievance, and a common oppressor.”23 As described by Tom

Watson, a prominent Populist leader, in a speech advocating a union

between black and white farmers: “You are kept apart that you may be

separately fleeced of your earnings. You are made to hate each other

because upon that hatred is rested the keystone of the arch of financial

despotism that enslaves you both. You are deceived and blinded that

you may not see how this race antagonism perpetuates a monetary

system which beggars both.”24

In an effort to demonstrate their commitment to a genuinely multira-

cial, working-class movement against white elites, the Populists made

strides toward racial integration, a symbol of their commitment to

class-based unity. African Americans throughout the South responded

with great hope and enthusiasm, eager to be true partners in a struggle

for social justice. According to Woodward, “It is altogether probable

4 2 T H E N E W J I M   C R O W

that during the brief Populist upheaval in the nineties Negroes and

native whites achieved a greater comity of mind and harmony of politi-

cal purpose than ever before or since in the South.”25

The challenges inherent in creating the alliance sought by the Pop-

ulists were formidable, as race prejudice ran the highest among the

very white populations to which the Populist appeal was specifically

addressed—the depressed lower economic classes. Nevertheless, the

Populist movement initially enjoyed remarkable success in the South,

fueled by a wave of discontent aroused by the severe agrarian depres-

sion of the 1880s and 1890s. The Populists took direct aim at the

conservatives, who were known as comprising a party of privilege,

and they achieved a stunning series of political victories throughout

the region. Alarmed by the success of the Populists and the apparent

potency of the alliance between poor and working-class whites and

African Americans, the conservatives raised the cry of white suprem-

acy and resorted to the tactics they had employed in their quest for

Redemption, including fraud, intimidation, bribery, and terror.

Segregation laws were proposed as part of a deliberate effort to

drive a wedge between poor whites and African Americans. These dis-

criminatory barriers were designed to encourage lower-class whites to

retain a sense of superiority over blacks, making it far less likely that

they would sustain interracial political alliances aimed at toppling the

white elite. The laws were, in effect, another racial bribe. As William

Julius Wilson has noted, “As long as poor whites directed their hatred

and frustration against the black competitor, the planters were relieved

of class hostility directed against them.”26 Indeed, in order to overcome

the well-founded suspicions of poor and illiterate whites that they, as

well as blacks, were in danger of losing the right to vote, the leaders of

the movement pursued an aggressive campaign of white supremacy in

every state prior to black disenfranchisement.

Ultimately, the Populists caved to the pressure and abandoned their

former allies. “While the [Populist] movement was at the peak of

T H E R E B I R T H O F C A S T E 4 3

zeal,” Woodward observed, “the two races had surprised each other

and astonished their opponents by the harmony they achieved and the

good will with which they co- operated.”27 But when it became clear

that the conservatives would stop at nothing to decimate their alli-

ance, the biracial partnership dissolved, and Populist leaders realigned

themselves with conservatives. Even Tom Watson, who had been

among the most forceful advocates for an interracial alliance of farm-

ers, concluded that Populist principles could never be fully embraced

by the South until blacks were eliminated from politics.

The agricultural depression, taken together with a series of failed

reforms and broken political promises, had pyramided to a climax of

social tensions. Dominant whites concluded that it was in their politi-

cal and economic interest to scapegoat blacks, and “permission to

hate” came from sources that had formerly denied it, including North-

ern liberals eager to reconcile with the South, Southern conservatives

who had once promised blacks protection from racial extremism, and

Populists, who cast aside their dark-skinned allies when the partner-

ship fell under siege.28

History seemed to repeat itself. Just as the white elite had success-

fully driven a wedge between poor whites and blacks following Bacon’s

Rebellion by creating the institution of black slavery, another racial

caste system was emerging nearly two centuries later, in part due to

efforts by white elites to decimate a multiracial alliance of poor people.

By the turn of the twentieth century, every state in the South had laws

on the books that disenfranchised blacks and discriminated against

them in virtually every sphere of life, lending sanction to a racial ostra-

cism that extended to schools, churches, housing, jobs, restrooms,

hotels, restaurants, hospitals, orphanages, prisons, funeral homes,

morgues, and cemeteries. Politicians competed with each other by

proposing and passing ever more stringent, oppressive, and downright

ridiculous legislation (such as laws specifically prohibiting blacks and

whites from playing chess together). The public symbols and constant

4 4 T H E N E W J I M   C R O W

reminders of black subjugation were supported by whites across the

political spectrum, though the plight of poor whites remained largely

unchanged. For them, the racial bribe was primarily psychological.

The new racial order, known as Jim Crow—a term apparently

derived from a minstrel show character—was regarded as the “final

settlement,” the “return to sanity,” and “the permanent system.”29 Of

course, the earlier system of racialized social control—slavery—had

also been regarded as final, sane, and permanent by its supporters.

Like the earlier system, Jim Crow seemed “natural,” and it became dif-

ficult to remember that alternative paths were not only available at one

time, but nearly embraced.

The Death of Jim Crow

Scholars have long debated the beginning and end of Reconstruction,

as well as exactly when Jim Crow ended and the Civil Rights Move-

ment or “Second Reconstruction” began. Reconstruction is most typ-

ically described as stretching from 1863, when the North freed the

slaves, to 1877, when it abandoned them and withdrew federal troops

from the South. There is much less certainty regarding the beginning

of the end of Jim Crow.

The general public typically traces the death of Jim Crow to Brown

v. Board of Education, although the institution was showing signs of

weakness years before. By 1945, a growing number of whites in the

North had concluded that the Jim Crow system would have to be mod-

ified, if not entirely overthrown. This consensus was due to a num-

ber of factors, including the increased political power of blacks due

to migration to the North and the growing membership and influence

of the NAACP, particularly its highly successful legal campaign chal-

lenging Jim Crow laws in federal courts. Far more important in the

view of many scholars, however, is the influence of World War II. The

blatant contradiction between the country’s opposition to the crimes

T H E R E B I R T H O F C A S T E 4 5

of the Third Reich against European Jews and the continued existence

of a racial caste system in the United States was proving embarrassing,

severely damaging the nation’s credibility as leader of the “free world.”

There was also increased concern that, without greater equality for

African Americans, blacks would become susceptible to communist

influence, given Russia’s commitment to both racial and economic

equality. In Gunnar Myrdal’s highly influential book An American

Dilemma, published in 1944, Myrdal made a passionate plea for inte-

gration based on the theory that the inherent contradiction between

the “American Creed” of freedom and equality and the treatment of

African Americans was not only immoral and profoundly unjust, but

was also against the economic and foreign policy interests of the Unit-

ed States.30

The Supreme Court seemed to agree. In 1944, in Smith v. Allwright,

the Supreme Court ended the use of the all-white primary election; and

in 1946, the Court ruled that state laws requiring segregation on inter-

state buses were unconstitutional. Two years later, the Court voided

any real estate agreements that racially discriminated against purchas-

ers, and in 1949, the Court ruled that Texas’s segregated law school for

blacks was inherently unequal and inferior in every respect to its law

school for whites. In 1950, in McLaurin v. Oklahoma, it declared that

Oklahoma had to desegregate its law school. Thus, even before Brown,

the Supreme Court had already begun to set in motion a striking pat-

tern of desegregation.

Brown v. Board of Education was unique, however. It signaled the end

of “home rule” in the South with respect to racial affairs. Earlier deci-

sions had chipped away at the “separate but equal” doctrine, yet Jim

Crow had managed to adapt to the changing legal environment, and

most Southerners had remained confident that the institution would

survive. Brown threatened not only to abolish segregation in public

schools, but also, by implication, the entire system of legalized dis-

crimination in the South. After more than fifty years of nearly complete

4 6 T H E N E W J I M   C R O W

deference to Southern states and noninterference in their racial affairs,

Brown suggested a reversal in course.

A mood of outrage and defiance swept the South, not unlike the

reaction to emancipation and Reconstruction following the Civil War.

Again, racial equality was being forced upon the South by the federal

government, and by 1956, Southern white opposition to desegregation

mushroomed into a vicious backlash. In Congress, North Carolina

senator Sam Ervin Jr. drafted a racist polemic, the “Southern Mani-

festo,” which vowed to fight to maintain Jim Crow by all legal means.

Ervin succeeded in obtaining the support of 101 out of 128 members

of Congress from the eleven original Confederate states.

A fresh wave of white terror was hurled at those who supported the

dismantling of Jim Crow. White Citizens’ Councils were formed in

almost every Southern city and backwater town, comprised primarily

of middle- to upper-middle-class whites in business and the clergy.

Just as Southern legislatures had passed the black codes in response

to the early steps of Reconstruction, in the years immediately follow-

ing Brown v. Board, five Southern legislatures passed nearly fifty new

Jim Crow laws. In the streets, resistance turned violent. The Ku Klux

Klan reasserted itself as a powerful terrorist organization, committing

castrations, killings, and the bombing of black homes and churches.

NAACP leaders were beaten, pistol-whipped, and shot. As quickly as

it began, desegregation across the South ground to a halt. In 1958,

thirteen school systems were desegregated; in 1960, only seventeen.31

In the absence of a massive, grassroots movement directly challeng-

ing the racial caste system, Jim Crow might be alive and well today. Yet

in the 1950s, a civil rights movement was brewing, emboldened by the

Supreme Court’s decisions and a shifting domestic and international

political environment. With extraordinary bravery, civil rights lead-

ers, activists, and progressive clergy launched boycotts, marches, and

sit-ins protesting the Jim Crow system. They endured fire hoses, police

dogs, bombings, and beatings by white mobs, as well as by the police.

T H E R E B I R T H O F C A S T E 4 7

Once again, federal troops were sent to the South to provide protection

for blacks attempting to exercise their civil rights, and the violent reac-

tion of white racists was met with horror in the North.

The dramatic high point of the Civil Rights Movement occurred in

1963. The Southern struggle had grown from a modest group of black

students demonstrating peacefully at one lunch counter to the largest

mass movement for racial reform and civil rights in the twentieth cen-

tury. Between autumn 1961 and spring 1963, twenty thousand men,

women, and children had been arrested. In 1963 alone, another fifteen

thousand were imprisoned, and one thousand desegregation protests

occurred across the region, in more than one hundred cities.32

On June 12, 1963, President Kennedy announced that he would

deliver to Congress a strong civil rights bill, a declaration that trans-

formed him into a widely recognized ally of the Civil Rights Move-

ment. Following Kennedy’s assassination, President Johnson professed

his commitment to the goal of “the full assimilation of more than

twenty million Negroes into American life,” and ensured the pas-

sage of comprehensive civil rights legislation. The Civil Rights Act of

1964 formally dismantled the Jim Crow system of discrimination in

public accommodations, employment, voting, education, and feder-

ally financed activities. The Voting Rights Act of 1965 arguably had

even greater scope, as it rendered illegal numerous discriminatory

barriers to effective political participation by African Americans and

mandated federal review of all new voting regulations so that it would

be possible to determine whether their use would perpetuate voting

discrimination.

Within five years, the effects of the civil rights revolution were

undeniable. Between 1964 and 1969, the percentage of African Ameri-

can adults registered to vote in the South soared. In Alabama the rate

leaped from 19.3 percent to 61.3 percent; in Georgia, 27.4 percent to

60.4 percent; in Louisiana, 31.6 percent to 60.8 percent; and in Mis-

sissippi, 6.7 percent to 66.5 percent.33 Suddenly black children could

4 8 T H E N E W J I M   C R O W

shop in department stores, eat at restaurants, drink from water foun-

tains, and go to amusement parks that were once off-limits. Miscege-

nation laws were declared unconstitutional, and the rate of interracial

marriage climbed.

While dramatic progress was apparent in the political and social

realms, civil rights activists became increasingly concerned that,

without major economic reforms, the vast majority of blacks would

remain locked in poverty. Thus at the peak of the Civil Rights Move-

ment, activists and others began to turn their attention to economic

problems, arguing that socioeconomic inequality interacted with rac-

ism to produce crippling poverty and related social problems. Eco-

nomic issues emerged as a major focus of discontent. As political

scientists Frances Fox Piven and Richard Cloward have described,

“blacks became more indignant over their condition—not only as an

oppressed racial minority in a white society but as poor people in an

affluent one.”34 Activists organized boycotts, picket lines, and demon-

strations to attack discrimination in access to jobs and the denial of

economic opportunity.

Perhaps the most famous demonstration in support of economic jus-

tice is the March on Washington for Jobs and Economic Freedom in

August 1963. The wave of activism associated with economic justice

helped to focus President Kennedy’s attention on poverty and black

unemployment. In the summer of 1963, he initiated a series of staff

studies on those subjects. By the end of the summer, he declared his

intention to make the eradication of poverty a key legislative objective

in 1964.35 Following Kennedy’s assassination, President Lyndon John-

son embraced the antipoverty rhetoric with great passion, calling for

an “unconditional war on poverty,” in his State of the Union Address

in January 1964. Weeks later he proposed to Congress the Economic

Opportunities Bill of 1964.

The shift in focus served to align the goals of the Civil Rights Move-

ment with key political goals of poor and working-class whites, who

T H E R E B I R T H O F C A S T E 4 9

were also demanding economic reforms. As the Civil Rights Move-

ment began to evolve into a “Poor People’s Movement,” it promised to

address not only black poverty, but white poverty as well—thus rais-

ing the specter of a poor and working-class movement that cut across

racial lines. Martin Luther King Jr. and other civil rights leaders made

it clear that they viewed the eradication of economic inequality as the

next front in the “human rights movement” and made great efforts

to build multiracial coalitions that sought economic justice for all.

Genuine equality for black people, King reasoned, demanded a radi-

cal restructuring of society, one that would address the needs of the

black and white poor throughout the country. Shortly before his assas-

sination, he envisioned bringing to Washington, DC, thousands of the

nation’s disadvantaged in an interracial alliance that embraced rural

and ghetto blacks, Appalachian whites, Mexican Americans, Puerto

Ricans, and Native Americans to demand jobs and income—the right

to live. In a speech delivered in 1968, King acknowledged there had

been some progress for blacks since the passage of the Civil Rights Act

of 1964, but insisted that the current challenges required even greater

resolve and that the entire nation must be transformed for economic

justice to be more than a dream for poor people of all colors. As histori-

an Gerald McKnight observes, “King was proposing nothing less than

a radical transformation of the Civil Rights Movement into a popu-

list crusade calling for redistribution of economic and political power.

America’s only civil rights leader was now focusing on class issues and

was planning to descend on Washington with an army of poor to shake

the foundations of the power structure and force the government to

respond to the needs of the ignored underclass.”36

With the success of the Civil Rights Movement and the launching of

the Poor People’s Movement, it was apparent to all that a major disrup-

tion in the nation’s racial equilibrium had occurred. Yet as we shall see

below, Negroes stood only a “brief moment in the sun.” Conservative

whites began, once again, to search for a new racial order that would

50 T H E N E W J I M   C R O W

conform to the needs and constraints of the time. This process took

place with the understanding that whatever the new order would be, it

would have to be formally race-neutral—it could not involve explicit

or clearly intentional race discrimination. A similar phenomenon had

followed slavery and Reconstruction, as white elites struggled to define

a new racial order with the understanding that whatever the new order

would be, it could not include slavery. Jim Crow eventually replaced

slavery, but now it too had died, and it was unclear what might take its

place. Barred by law from invoking race explicitly, those committed to

racial hierarchy were forced to search for new means of achieving their

goals according to the new rules of American democracy.

History reveals that the seeds of the new system of control were

planted well before the end of the Civil Rights Movement. A new race-

neutral language was developed for appealing to old racist sentiments,

a language accompanied by a political movement that succeeded in

putting the vast majority of blacks back in their place. Proponents

of racial hierarchy found they could install a new racial caste sys-

tem without violating the law or the new limits of acceptable politi-

cal discourse by demanding “law and order” rather than “segregation

forever.”

The Birth of Mass Incarceration

The rhetoric of “law and order” was first mobilized in the late 1950s as

Southern governors and law enforcement officials attempted to gener-

ate and mobilize white opposition to the Civil Rights Movement. In

the years following Brown v. Board of Education, civil rights activists

used direct-action tactics in an effort to force reluctant Southern states

to desegregate public facilities. Southern governors and law enforce-

ment officials often characterized these tactics as criminal and argued

that the rise of the Civil Rights Movement was indicative of a break-

down of law and order. Fire departments regularly used powerful

hoses to break up rallies supporting desegregation, and police force-

T H E R E B I R T H O F C A S T E 5 1

fully cracked down on marches throughout the South—often working

with the Ku Klux Klan and other racial terror groups to lynch, torture,

or imprison black people, especially black activists. Support of civil

rights legislation was derided by Southern conservatives as merely

“rewarding lawbreakers.”

For more than a decade—from the mid- 1950s until the late

1960s— conservatives systematically and strategically linked opposi-

tion to civil rights legislation to calls for law and order, arguing that

Martin Luther King Jr.’s philosophy of civil disobedience was a leading

cause of crime. Civil rights protests were frequently depicted as crimi-

nal rather than political in nature, and federal courts were accused of

excessive “lenience” toward lawlessness, thereby contributing to the

spread of crime. In the words of former vice president Richard Nixon

as he campaigned for the presidency, the increasing crime rate “can

be traced directly to the spread of the corrosive doctrine that every

citizen possesses an inherent right to decide for himself which laws

to obey and when to disobey them.”37 Some segregationists went fur-

ther, insisting that integration causes crime, citing lower crime rates

in Southern states as evidence that segregation was necessary. In the

words of Representative John Bell Williams, “This exodus of Negroes

from the South, and their influx into the great metropolitan centers of

other areas of the Nation, has been accompanied by a wave of crime. . . .

What has civil rights accomplished for these areas? . . . Segregation is

the only answer as most Americans—not the politicians—have real-

ized for hundreds of years.”38

Unfortunately, at the same time that civil rights were being identi-

fied as a threat to law and order, the FBI was reporting fairly dramatic

increases in the national crime rate. Beginning in the 1960s, crime

rates rose in the United States for a period of about ten years. Reported

street crime quadrupled, and homicide rates nearly doubled. Despite

significant controversy over the accuracy of crime statistics during

this period (the FBI’s method of tracking crime was changing), sociol-

ogists and criminologists agree that crime did rise, in some categories

5 2 T H E N E W J I M   C R O W

quite sharply. The reasons for the crime wave are complex but can be

explained in large part by the rise of the “baby boom” generation—the

spike in the number of young men in the fifteen-to-twenty-four age

group, which historically has been responsible for most crimes. The

surge of young men in the population was occurring at precisely the

same time that unemployment rates for black men were rising sharp-

ly, but the economic and demographic factors contributing to rising

crime were not explored in the media. Instead, crime reports were

sensationalized and offered as further evidence of the breakdown

in lawfulness, morality, and social stability in the wake of the Civil

Rights Movement.39

To make matters worse, riots erupted in the summer of 1964 in Har-

lem and Rochester, followed by a series of uprisings that swept the

nation following the assassination of Martin Luther King Jr. in 1968.

The racial imagery associated with the riots gave fuel to the argument

that civil rights for blacks led to rampant crime. Cities like Philadel-

phia and Rochester were described as being victims of their own gen-

erosity. Conservatives argued that, having welcomed blacks migrating

from the South, these cities “were repaid with crime-ridden slums and

black discontent.” 40

Barry Goldwater, in his 1964 presidential campaign, aggressively

exploited the riots and fears of black crime, laying the foundation for

the “get tough on crime” movement that would emerge years later. In

a widely quoted speech, Goldwater warned voters, “Choose the way

of [the Johnson] Administration and you have the way of mobs in

the street.” 41 Civil rights activists who argued that the uprisings were

directly related to widespread police harassment and abuse were dis-

missed by conservatives out of hand. “If [blacks] conduct themselves

in an orderly way, they will not have to worry about police brutality,”

argued West Virginia senator Robert Byrd.42

Growing numbers of black activists began organizing against police

violence during this period, and some organizations, including the

T H E R E B I R T H O F C A S T E 5 3

Black Panther Party (originally called the Black Panther Party for Self

Defense), boldly asserted the right of black people to arm themselves

in order to defend their communities against police brutality. Media

imagery of black men in leather jackets and berets, toting guns, proud-

ly embracing their revolutionary politics, and preaching “Black Power”

enhanced fears among many whites that violent insurrections were

inevitable if law enforcement failed to gain control over black com-

munities. The FBI, led by J. Edgar Hoover, responded by operating a

covert counterintelligence program, known as COINTELPRO, that tar-

geted civil rights leaders and activists, including Martin Luther King

Jr. and Malcolm X, who were deemed dangerous or suspected of Com-

munist Party affiliation. FBI agents also infiltrated black community

and activist organizations, sought to undermine political education

efforts, and illegally and legally surveilled, targeted, jailed, and killed

activists. According to historian Dan Berger, from 1969 through 1971,

at least forty Panthers were killed—some directly by police forces and

others as the result of internal conflicts “fanned to deadly flames” by

the police and FBI through undercover operations. Over one thousand

Panthers were jailed, many on false charges, as a result of informants,

perpetual surveillance, and other law enforcement tactics that would

later become defining features of the War on Drugs.43

While many civil rights advocates in this period actively resisted the

attempts by conservative politicians and law enforcement to use rising

crime rates, riots, and Black Power rhetoric as an excuse to crack down

on impoverished black communities, some black activists began to join

the calls for “law and order” and expressed support for harsh responses

to lawbreakers. As Vanessa Barker describes in The Politics of Imprison-

ment, black activists in Harlem, alarmed by rising crime rates, actively

campaigned for what would become the notorious Rockefeller drug laws

as well as other harsh sentencing measures.44 Wittingly or unwittingly,

they found themselves complicit in the emergence of a penal system

unprecedented in world history. Black support for harsh responses to

5 4 T H E N E W J I M   C R O W

urban crime—support born of desperation and legitimate concern over

the unraveling of basic security in inner-city communities—helped

provide political cover for conservative politicians who saw an opening

to turn back the clock on racial progress in the United States. Conser-

vatives could point to black support for highly punitive approaches to

dealing with the problems of the urban poor as “proof” that race had

nothing to do with their “law and order” agenda.

Early on, little effort was made to disguise the racial motivations

behind the law and order rhetoric and the harsh criminal justice legis-

lation proposed in Congress. The most ardent opponents of civil rights

legislation and desegregation were the most active on the emerging

crime issue. Well-known segregationist George Wallace, for example,

argued that “the same Supreme Court that ordered integration and

encouraged civil rights legislation” was now “bending over backwards

to help criminals.” 45 Three other prominent segregationists—Senators

McClellan, Ervin, and Thurmond—led the legislative battle to curb

the rights of criminal defendants.46

As the rules of acceptable discourse changed, however, segrega-

tionists distanced themselves from an explicitly racist agenda. They

developed instead the racially sanitized rhetoric of “cracking down on

crime”—rhetoric that is now used freely by politicians of every stripe.

Conservative politicians who embraced this rhetoric purposefully

failed to distinguish between the direct action tactics of civil rights

activists, violent rebellions in inner cities, and traditional crimes of an

economic or violent nature. Instead, as Marc Mauer of the Sentencing

Project has noted, “all of these phenomenon were subsumed under the

heading of ‘crime in the streets.’” 47

After the passage of the Civil Rights Act, the public debate shifted

focus from segregation to crime. The battle lines, however, remained

largely the same. Positions taken on crime policies typically cohered

along lines of racial ideology. Political scientist Vesla Weaver explains:

“Votes cast in opposition to open housing, busing, the Civil Rights

T H E R E B I R T H O F C A S T E 5 5

Act, and other measures time and again showed the same divisions as

votes for amendments to crime bills. . . . Members of Congress who

voted against civil rights measures proactively designed crime legisla-

tion and actively fought for their proposals.” 48

Although law and order rhetoric ultimately failed to prevent the for-

mal dismantling of the Jim Crow system, it proved highly effective in

appealing to poor and working-class whites, particularly in the South,

who were opposed to integration and frustrated by the Democratic Par-

ty’s apparent support for the Civil Rights Movement. As Weaver notes,

“rather than fading, the segregationists’ crime-race argument was

reframed, with a slightly different veneer,” and eventually became the

foundation of the conservative agenda on crime.49 In fact, law and order

rhetoric—first employed by segregationists—would eventually con-

tribute to a major realignment of political parties in the United States.

Following the Civil War, party alignment was almost entirely

regional. The South was solidly Democratic, embittered by the war,

firmly committed to the maintenance of a racial caste system, and

extremely hostile to federal intervention on behalf of African Ameri-

cans. The North was overwhelmingly Republican and, while Republi-

cans were ambivalent about equality for African Americans, they were

far more inclined to adopt and implement racial justice reforms than

their Democratic counterparts below the Mason-Dixon line.

The Great Depression effectuated a sea change in American race

relations and party alignment. The New Deal—spearheaded by the

Democratic Party of President Franklin D. Roosevelt—was designed

to alleviate the suffering of poor people in the midst of the Depression,

and blacks, the poorest of the poor, benefited disproportionately. While

New Deal programs were rife with discrimination in their administra-

tion, they at least included blacks within the pool of beneficiaries—a

development, historian Michael Klarman has noted, that was “suf-

ficient to raise black hopes and expectations after decades of malign

neglect from Washington.”50 Poor and working-class whites in both the

5 6 T H E N E W J I M   C R O W

North and South, no less than African Americans, responded positively

to the New Deal, anxious for meaningful economic relief. As a result,

the Democratic New Deal coalition evolved into an alliance of urban

ethnic groups and the white South that dominated electoral politics

from 1932 to the early 1960s.

That dominance came to an abrupt end with the creation and imple-

mentation of what has come to be known as the Southern Strategy.

The success of law and order rhetoric among working-class whites and

the intense resentment of racial reforms, particularly in the South,

led conservative Republican analysts to believe that a “new majority”

could be created by the Republican Party, one that included the tradi-

tional Republican base, the white South, and half the Catholic, blue-

collar vote of the big cities.51 Some conservative political strategists

admitted that appealing to racial fears and antagonisms was central to

this strategy, though it had to be done surreptitiously. H.R. Haldeman,

one of Nixon’s key advisers, recalls that Nixon himself deliberately

pursued a Southern, racial strategy: “He [President Nixon] empha-

sized that you have to face the fact that the whole problem is really

the blacks. The key is to devise a system that recognizes this while

not appearing to.”52 Similarly, John Ehrlichman, special counsel to the

president, explained the Nixon administration’s campaign strategy of

1968 in this way: “We’ll go after the racists.”53 In Ehrlichman’s view,

“that subliminal appeal to the anti-black voter was always present in

Nixon’s statements and speeches.”54

Republican strategist Kevin Phillips is often credited for offer-

ing the most influential argument in favor of a race-based strategy

for Republican political dominance in the South. He argued in The

Emerging Republican Majority, published in 1969, that Nixon’s suc-

cessful presidential election campaign could point the way toward

long-term political realignment and the building of a new Republi-

can majority, if Republicans continued to campaign primarily on the

basis of racial issues, using coded antiblack rhetoric.55 He argued that

T H E R E B I R T H O F C A S T E 5 7

Southern white Democrats had become so angered and alienated by

the Democratic Party’s support for civil rights reforms, such as deseg-

regation and busing, that those voters could be easily persuaded to

switch parties if those racial resentments could be maintained. War-

ren Weaver, a New York Times journalist who reviewed the book upon

its release, observed that Phillips’s strategy largely depended upon

creating and maintaining a racially polarized political environment.

“Full racial polarization is an essential ingredient of Phillips’s political

pragmatism. He wants to see a black Democratic party, particularly in

the South, because this will drive into the Republican party precisely

the kind of anti- Negro whites who will help constitute the emerging

majority. This even leads him to support some civil rights efforts.”56

Appealing to the racism and vulnerability of working-class whites had

worked to defeat the Populists at the turn of the century, and a growing

number of conservatives believed the tactic should be employed again,

albeit in a more subtle fashion.

Thus in the late 1960s and early 1970s, two schools of thought were

offered to the general public regarding race, poverty, and the social

order. Conservatives argued that poverty was caused not by structural

factors related to race and class but rather by culture—particularly

black culture. This view received support from Daniel Patrick Moyni-

han’s now infamous report on the black family, which attributed black

poverty to a black “subculture” and the “tangle of pathology” that

characterized it. As described by sociologist Katherine Beckett, “The

(alleged) misbehaviors of the poor were transformed from adapta-

tions to poverty that had the unfortunate effect of reproducing it into

character failings that accounted for poverty in the first place.”57 The

“social pathologies” of the poor, particularly street crime, illegal drug

use, and delinquency, were redefined by conservatives as having their

cause in overly generous relief arrangements. Black “welfare cheats”

and their dangerous offspring emerged, for the first time, in the politi-

cal discourse and media imagery.

5 8 T H E N E W J I M   C R O W

Liberals, by contrast, insisted that social reforms such as the War

on Poverty and civil rights legislation would get at the “root causes” of

criminal behavior and stressed the social conditions that predictably

generate crime. Lyndon Johnson, for example, argued during his 1964

presidential campaign against Barry Goldwater that antipoverty pro-

grams were, in effect, anticrime programs: “There is something mighty

wrong when a candidate for the highest office bemoans violence in the

streets but votes against the War on Poverty, votes against the Civil

Rights Act and votes against major educational bills that come before

him as a legislator.”58

Competing images of the poor as “deserving” and “undeserving”

became central components of the debate. Ultimately, the racialized

nature of this imagery became a crucial resource for conservatives,

who succeeded in using law and order rhetoric in their effort to mobi-

lize the resentment of white working-class voters, many of whom felt

threatened by the sudden progress of African Americans. As explained

by Thomas and Mary Edsall in their insightful book Chain Reaction,

a disproportionate share of the costs of integration and racial equality

had been borne by lower- and lower-middle-class whites, who were

suddenly forced to compete on equal terms with blacks for jobs and

status and who lived in neighborhoods adjoining black ghettos. Their

children—not the children of wealthy whites—attended schools most

likely to fall under busing orders. The affluent white liberals who were

pressing the legal claims of blacks and other minorities “were often

sheltered, in their private lives, and largely immune to the costs of

implementing minority claims.”59 This reality made it possible for con-

servatives to characterize the “liberal Democratic establishment” as

being out of touch with ordinary working people—thus resolving one

of the central problems facing conservatives: how to persuade poor

and working-class voters to join in alliance with corporate interests

and the conservative elite. By 1968, 81 percent of those responding

to the Gallup Poll agreed with the statement that “law and order has

T H E R E B I R T H O F C A S T E 59

broken down in this country,” and the majority blamed “Negroes who

start riots” and “Communists.” 60

During the presidential election that year, both the Republican

candidate, Richard Nixon, and the independent segregationist candi-

date, George Wallace, made “law and order” a central theme of their

campaigns, and together they collected 57 percent of the vote.61 Nix-

on dedicated seventeen speeches solely to the topic of law and order,

and one of his television ads explicitly called on voters to reject the

lawlessness of civil rights activists and embrace “order” in the United

States.62 The advertisement began with frightening music accompa-

nied by flashing images of protestors, bloodied victims, and violence.

A deep voice then said:

It is time for an honest look at the problem of order in the

United States. Dissent is a necessary ingredient of change,

but in a system of government that provides for peaceful

change, there is no cause that justifies resort to violence.

Let us recognize that the first right of every American is to

be free from domestic violence. So I pledge to you, we shall

have order in the United States.

At the end of the ad, a caption declared: “This time . . . vote like your

whole world depended on it . . . NIXON.” Viewing his own campaign

ad, Nixon reportedly remarked with glee that the ad “hits it right on

the nose. It’s all about those damn Negro–Puerto Rican groups out

there.” 63

Race had become, yet again, a powerful wedge, breaking up what had

been a solid liberal coalition based on economic interests of the poor

and the working and lower-middle classes. In the 1968 election, race

eclipsed class as the organizing principle of American politics, and by

1972, attitudes on racial issues rather than socioeconomic status were

the primary determinant of voters’ political self-identification. The

6 0 T H E N E W J I M   C R O W

late 1960s and early 1970s marked the dramatic erosion in the belief

among working-class whites that the condition of the poor, or those

who fail to prosper, was the result of a faulty economic system that

needed to be challenged. As the Edsalls explain, “the pitting of whites

and blacks at the low end of the income distribution against each oth-

er intensified the view among many whites that the condition of life

for the disadvantaged—particularly for disadvantaged blacks—is the

responsibility of those afflicted, and not the responsibility of the larger

society.” 64 Just as race had been used at the turn of the century by

Southern elites to rupture class solidarity at the bottom of the income

ladder, race as a national issue had broken up the Democratic New

Deal “bottom-up” coalition—a coalition dependent on substantial sup-

port from all voters, white and black, at or below the median income.

The conservative revolution that took root within the Republican

Party in the 1960s did not reach its full development until the election

of President Ronald Reagan in 1980. The decade preceding Reagan’s

ascent to the presidency was characterized by political and social crises,

as the Civil Rights Movement was promptly followed by intense con-

troversy over the implementation of the equality principle—especially

busing and affirmative action—as well as dramatic political clashes

over the Vietnam War and Watergate. Throughout the 1970s, conserva-

tives generally gave lip service to the goal of racial equality but active-

ly resisted desegregation, busing, and civil rights enforcement. They

repeatedly raised the issue of welfare, subtly framing it as a contest

between hardworking, blue-collar whites and poor blacks who refused

to work. The not-so-subtle message to working-class whites was that

their tax dollars were going to support special programs for blacks who

most certainly did not deserve them. During this period, Nixon called

for a “war on drugs”—an announcement that proved largely rhetorical

as he declared illegal drugs “public enemy number one” without pro-

posing dramatic shifts in drug policy. A backlash against blacks was

clearly in force, but no consensus had yet been reached regarding what

T H E R E B I R T H O F C A S T E 6 1

racial and social order would ultimately emerge from these turbulent

times. That changed during the Reagan era.

In his campaign for the presidency, Reagan mastered the “excision

of the language of race from conservative public discourse” and thus

built on the success of earlier conservatives who developed a strategy

of exploiting racial hostility or resentment for political gain without

making explicit reference to race.65 Condemning “welfare queens”

and criminal “predators,” he rode into office with the strong sup-

port of disaffected whites—poor and working-class whites who felt

betrayed by the Democratic Party’s embrace of the civil rights agenda.

As one political insider explained, Reagan’s appeal derived primarily

from the ideological fervor of the right wing of the Republican Party

and “the emotional distress of those who fear or resent the Negro,

and who expect Reagan somehow to keep him ‘in his place’ or at

least echo their own anger and frustration.” 66 To great effect, Reagan

echoed white frustration in race-neutral terms through implicit racial

appeals. His “colorblind” rhetoric on crime, welfare, taxes, and states’

rights was clearly understood by white (and black) voters as having

a racial dimension, though claims to that effect were impossible to

prove. The absence of explicitly racist rhetoric afforded the racial

nature of his coded appeals a certain plausible deniability. For exam-

ple, when Reagan kicked off his presidential campaign at the annual

Neshoba County Fair near Philadelphia, Mississippi—the town where

three civil rights activists were murdered in 1964—he assured the

crowd “I believe in states’ rights,” and promised to restore to states

and local governments the power that properly belonged to them.67

His critics promptly alleged that he was signaling a racial message to

his audience, suggesting allegiance with those who resisted deseg-

regation, but Reagan firmly denied it, forcing liberals into a position

that would soon become familiar—arguing that something is racist

but finding it impossible to prove in the absence of explicitly racist

language.

6 2 T H E N E W J I M   C R O W

Crime and welfare were the major themes of Reagan’s campaign rhet-

oric. According to the Edsalls, one of Reagan’s favorite and most-often-

repeated anecdotes was the story of a Chicago “welfare queen” with

“80 names, 30 addresses, 12 Social Security cards,” whose “tax-free

income alone is over $150,000.” 68 The term welfare queen became a

not-so-subtle code for “lazy, greedy, black ghetto mother.” The food

stamp program, in turn, was a vehicle to let “some fellow ahead of

you buy a T-bone steak,” while “you were standing in a checkout line

with your package of hamburger.” 69 These highly racialized appeals,

targeted to poor and working-class whites, were nearly always accom-

panied by vehement promises to be tougher on crime and to enhance

the federal government’s role in combating it. Reagan portrayed the

criminal as “a staring face—a face that belongs to a frightening reality

of our time: the face of the human predator.”70 Reagan’s racially coded

rhetoric and strategy proved extraordinarily effective, as 22 percent of

all Democrats defected from the party to vote for Reagan. The defec-

tion rate shot up to 34 percent among those Democrats who believed

civil rights leaders were pushing “too fast.”71

Once elected, Reagan’s promise to enhance the federal govern-

ment’s role in fighting crime was complicated by the fact that fight-

ing street crime has traditionally been the responsibility of state and

local law enforcement. After a period of initial confusion and contro-

versy regarding whether the FBI and the federal government should be

involved in street crime, the Justice Department announced its inten-

tion to cut in half the number of specialists assigned to identify and

prosecute white-collar crime and to shift its attention to street crime,

especially drug-law enforcement.72 In October 1982, President Reagan

officially announced his administration’s War on Drugs. At the time

he declared this new war, less than 2 percent of the American public

viewed drugs as the most important issue facing the nation.73 This fact

was no deterrent to Reagan, for the drug war from the outset had little

to do with public concern about drugs and much to do with public

T H E R E B I R T H O F C A S T E 6 3

concern about race. By waging a war on drug users and dealers, Rea-

gan made good on his promise to crack down on the racially defined

“others”—the undeserving.

Practically overnight the budgets of federal law enforcement agen-

cies soared. Between 1980 and 1984, FBI antidrug funding increased

from $8 million to $95 million.74 Department of Defense antidrug allo-

cations increased from $33 million in 1981 to $1,042 million in 1991.

During that same period, DEA antidrug spending grew from $86 to

$1,026 million, and FBI antidrug allocations grew from $38 to $181

million.75 By contrast, funding for agencies responsible for drug treat-

ment, prevention, and education was dramatically reduced. The bud-

get of the National Institute on Drug Abuse, for example, was reduced

from $274 million to $57 million from 1981 to 1984, and antidrug

funds allocated to the Department of Education were cut from $14 mil-

lion to $3 million.76

Determined to ensure that the “new Republican majority” would

continue to support the extraordinary expansion of the federal

government’s law enforcement activities and that Congress would

continue to fund it, the Reagan administration launched a media

offensive to justify the War on Drugs.77 Central to the media cam-

paign was an effort to sensationalize the emergence of crack cocaine

in inner-city neighborhoods—communities devastated by deindus-

trialization and skyrocketing unemployment. The media frenzy the

campaign inspired simply could not have come at a worse time for

African Americans.

In the early 1980s, just as the drug war was kicking off, inner-city

communities were suffering from economic collapse. The blue-collar

factory jobs that had been plentiful in urban areas in the 1950s and

1960s had suddenly disappeared.78 Prior to 1970, inner-city workers

with relatively little formal education could find industrial employ-

ment close to home. Globalization, however, helped to change that.

Manufacturing jobs were transferred by multinational corporations

6 4 T H E N E W J I M   C R O W

away from American cities to countries that lacked unions, where

workers earn a small fraction of what is considered a fair wage in the

United States. To make matters worse, dramatic technological changes

revolutionized the workplace—changes that eliminated many of the

jobs that less skilled workers once relied upon for their survival. High-

ly educated workers benefited from the pace of technological change

and the increased use of computer-based technologies, but blue-collar

workers often found themselves displaced in the sudden transition

from an industrial to a service economy.

The impact of globalization and deindustrialization was felt most

strongly in black inner-city communities. As described by William

Julius Wilson in his book When Work Disappears, the overwhelming

majority of African Americans in the 1970s lacked college educations

and had attended racially segregated, underfunded schools lacking

basic resources. Those residing in ghetto communities were particu-

larly ill equipped to adapt to the seismic changes taking place in the

U.S. economy; they were left isolated and jobless. One study indicates

that as late as 1970, more than 70 percent of all blacks working in met-

ropolitan areas held blue-collar jobs.79 Yet by 1987, when the drug war

hit high gear, the industrial employment of black men had plummeted

to 28 percent.80

The new manufacturing jobs that opened during this time period

were generally located in the suburbs. The growing spatial mismatch

of jobs had a profound impact on African Americans trapped in ghet-

tos. A study of urban black fathers found that only 28 percent had

access to an automobile. The rate fell to 18 percent for those living in

ghetto areas.81

Women fared somewhat better during this period because the social-

service sector in urban areas—which employs primarily women—was

expanding at the same time manufacturing jobs were evaporating. The

fraction of black men who moved into so-called pink-collar jobs like

nursing or clerical work was negligible.82

T H E R E B I R T H O F C A S T E 6 5

The decline in legitimate employment opportunities among inner-

city residents created economic desperation, leading some to sell

drugs—most notably crack cocaine. Crack is pharmacologically

almost identical to powder cocaine, but it has been converted into

a form that can be vaporized and inhaled for a faster, more intense

(though shorter) high using less of the drug— making it possible to

sell small doses at more affordable prices. Crack hit the streets in

1985, a few years after Reagan’s drug war was announced, resulting

in a spike in violence as drug markets struggled to stabilize, and the

anger and frustration associated with joblessness boiled. Joblessness

and crack swept inner cities precisely at the moment that a fierce

backlash against the Civil Rights Movement was manifesting itself

through the War on Drugs.

No one should ever attempt to minimize the harm caused by

crack cocaine and the related violence. As David Kennedy correctly

observes, “[c] rack blew through America’s poor black neighborhoods

like the Four Horsemen of the Apocalypse,” leaving behind unspeak-

able devastation and suffering.83 As a nation, though, we had a choice

about how to respond. Some countries faced with rising drug crime

or seemingly intractable rates of drug abuse and drug addiction chose

the path of drug treatment, prevention, education, or economic invest-

ment. Portugal, for example, responded to persistent problems of drug

addiction and abuse by decriminalizing the possession of all drugs and

redirecting the money that would have been spent putting drug users

in cages into drug treatment and prevention. Ten years later, Portugal

reported that rates of drug abuse and addiction had plummeted, and

drug-related crime was on the decline as well.84 Numerous paths were

available to our nation in the wake of the crack crisis, yet for reasons

traceable largely to racial politics and fear mongering, we chose war.

Conservatives found they could finally justify an all-out war on an

“enemy” that had been racially defined years before.

Almost immediately after crack appeared, the Reagan administration

6 6 T H E N E W J I M   C R O W

leaped at the opportunity to publicize crack cocaine in an effort to build

support for its drug war. In October 1985, the DEA sent Robert Stutman

to serve as director of its New York City office and charged him with

the responsibility of shoring up public support for the administration’s

new war. Stutman developed a strategy for improving relations with the

news media and sought to draw journalists’ attention to the spread of

crack cocaine in inner-city communities. As Stutman recounted years

later:

The agents would hear me give hundreds of presentations

to the media as I attempted to call attention to the drug

scourge. I wasted no time in pointing out its [the DEA’s]

new accomplishments against the drug traffickers. . . . In

order to convince Washington, I needed to make it [drugs]

a national issue and quickly. I began a lobbying effort and I

used the media. The media were only too willing to coop-

erate, because as far the New York media was concerned,

crack was the hottest combat reporting story to come along

since the end of the Vietnam War.85

The strategy bore fruit. In June 1986, Newsweek declared crack to be

the biggest story since Vietnam/Watergate, and in August of that year,

Time magazine termed crack “the issue of the year.” Thousands of sto-

ries about the crack crisis flooded the airwaves and newsstands, and

the stories had a clear racial subtext. The articles typically featured

black “crack whores,” “crack babies,” and “gangbangers,” reinforcing

already prevalent racial stereotypes of black women as irresponsible,

selfish “welfare queens,” and black men as “predators”—part of an

inferior and criminal subculture.86 When two popular sports figures,

Len Bias and Don Rogers, died of cocaine overdoses in June 1986, the

media erroneously reported their deaths as caused by crack, contrib-

uting to the media firestorm and groundswell of political activity and

T H E R E B I R T H O F C A S T E 6 7

public concern relating to the new “demon drug,” crack cocaine. The

bonanza continued into 1989, as the media continued to disseminate

claims that crack was an “epidemic,” a “plague,” “instantly addictive,”

and extraordinarily dangerous— claims that have now been proven

false or highly misleading. Between October 1988 and October 1989,

The Washington Post alone ran 1,565 stories about the “drug scourge.”

Richard Harwood, the Post’s ombudsmen, eventually admitted the

paper had lost “a proper sense of perspective” due to such a “hyperbole

epidemic.” He said that “politicians are doing a number on people’s

heads.”87 Sociologists Craig Reinarman and Harry Levine later made a

similar point: “Crack was a godsend to the Right. . . . It could not have

appeared at a more politically opportune moment.”88

In September 1986, with the media frenzy at full throttle, the House

passed legislation that allocated $2 billion to the antidrug crusade,

required the participation of the military in narcotics control efforts,

allowed the death penalty for some drug-related crimes, and authorized

the admission of some illegally obtained evidence in drug trials. Later

that month, the Senate proposed even tougher antidrug legislation,

and shortly thereafter, the president signed the Anti-Drug Abuse Act

of 1986 into law. Among other harsh penalties, the legislation included

mandatory minimum sentences for the distribution of cocaine, includ-

ing far more severe punishment for distribution of crack—associated

with blacks—than powder cocaine—associated with whites.

Few criticisms of the legislation could be heard en route to enact-

ment. One senator insisted that crack had become a scapegoat dis-

tracting the public’s attention from the true causes of our social ills,

arguing: “If we blame crime on crack, our politicians are off the hook.

Forgotten are the failed schools, the malign welfare programs, the des-

olate neighborhoods, the wasted years. Only crack is to blame. One

is tempted to think that if crack did not exist, someone somewhere

would have received a Federal grant to develop it.”89 Critical voices,

however, were lonely ones.

6 8 T H E N E W J I M   C R O W

Congress revisited drug policy in 1988. The resulting legislation was

once again extraordinarily punitive, this time extending far beyond

traditional criminal punishments and including new “civil penalties”

for people convicted of drug crimes. The new Anti-Drug Abuse Act

authorized public housing authorities to evict any tenant who allows

any form of drug-related criminal activity to occur on or near pub-

lic housing premises and eliminated many federal benefits, including

student loans, for anyone convicted of a drug offense. The act also

expanded use of the death penalty for serious drug-related offenses

and imposed new mandatory minimums for drug offenses, including a

five-year mandatory minimum for simple possession of cocaine base—

with no evidence of intent to sell. Remarkably, the penalty would apply

to people with no prior criminal convictions. The severity of this pun-

ishment was unprecedented in the federal system. Until 1988, one year

of imprisonment had been the maximum for possession of any amount

of any drug. Members of the Congressional Black Caucus (CBC) were

mixed in their assessment of the new legislation—some believed the

harsh penalties were necessary, others convinced that the laws were

biased and harmful to African Americans. Ultimately the legislation

passed by an overwhelming margin—346 to 11. Six of the negative

votes came from the CBC.90

The War on Drugs proved popular among key white voters, par-

ticularly whites who remained resentful of black progress, civil

rights enforcement, and affirmative action. Beginning in the 1970s,

researchers found that racial attitudes—not crime rates or likelihood

of victimization—are an important determinant of white support for

“get tough on crime” and antiwelfare measures.91 Among whites, those

expressing the highest degree of concern about crime also tend to

oppose racial reform, and their punitive attitudes toward crime are

largely unrelated to their likelihood of victimization.92 Whites, on

average, are more punitive than blacks, despite the fact that blacks

are far more likely to be victims of crime. Rural whites are often the

T H E R E B I R T H O F C A S T E 6 9

most punitive, even though they are least likely to be crime victims.93

The War on Drugs, cloaked in race-neutral language, offered whites

opposed to racial reform a unique opportunity to express their hostil-

ity toward blacks and black progress, without being exposed to the

charge of racism.

Reagan’s successor, President George Bush Sr., did not hesitate to

employ implicit racial appeals, having learned from the success of

other conservative politicians that subtle negative references to race

could mobilize poor and working-class whites who once were loyal

to the Democratic Party. Bush’s most famous racial appeal, the Willie

Horton ad, featured a dark-skinned black man, a convicted murderer

who escaped while on a work furlough and then raped and murdered

a white woman in her home. The ad blamed Bush’s opponent, Massa-

chusetts governor Michael Dukakis, for the death of the white woman,

because he approved the furlough program. For months, the ad played

repeatedly on network news stations and was the subject of incessant

political commentary. Though controversial, the ad was stunningly

effective; it destroyed Dukakis’s chances of ever becoming president.

Once in the Oval Office, Bush stayed on message, opposing affirmative

action and aggressive civil rights enforcement, and embracing the drug

war with great enthusiasm. In August 1989, President Bush character-

ized drug use as “the most pressing problem facing the nation.”94 Short-

ly thereafter, a New York Times/CBS News Poll reported that 64 percent

of those polled—the highest percentage ever recorded—now thought

that drugs were the most significant problem in the United States.95

This surge of public concern did not correspond to a dramatic shift in

illegal drug activity, but instead was the product of a carefully orches-

trated political campaign. The level of public concern about crime and

drugs was only weakly correlated with actual crime rates, but highly

correlated with political initiatives, campaigns, and partisan appeals.96

The shift to a general attitude of “toughness” toward problems

associated with communities of color began in the 1960s, when the

7 0 T H E N E W J I M   C R O W

gains and goals of the Civil Rights Movement began to require real

sacrifices on the part of white Americans, and conservative politicians

found they could mobilize white racial resentment by vowing to crack

down on crime. By the late 1980s, however, not only conservatives

played leading roles in the get-tough movement, spouting the rheto-

ric once associated only with segregationists. Democratic politicians

and policymakers were now attempting to wrest control of the crime

and drug issues from Republicans by advocating stricter anticrime and

antidrug laws—all in an effort to win back the so-called “swing vot-

ers” who were defecting to the Republican Party. Somewhat ironically,

these “new Democrats” were joined by virulent racists, most notably

the Ku Klux Klan, which announced in 1990 that it intended to “join

the battle against illegal drugs” by becoming the “eyes and ears of the

police.”97 Progressives concerned about racial justice in this period

were mostly silent about the War on Drugs, preferring to channel their

energy toward defense of affirmative action and other perceived gains

of the Civil Rights Movement.

In the early 1990s, resistance to the emergence of a new system of

racialized social control collapsed across the political spectrum. A

century earlier, a similar political dynamic had resulted in the birth

of Jim Crow. In the 1890s, Populists buckled under the political pres-

sure created by the Redeemers, who had successfully appealed to poor

and working-class whites by proposing overtly racist and increas-

ingly absurd Jim Crow laws. Now, a new racial caste system—mass

incarceration—was taking hold, as politicians of every stripe compet-

ed with each other to win the votes of poor and working-class whites,

whose economic status was precarious, at best, and who felt threatened

by racial reforms. As had happened before, former allies of African

Americans—as much as conservatives—adopted a political strategy

that required them to prove how “tough” they could be on “them,” the

dark-skinned pariahs.

T H E R E B I R T H O F C A S T E 7 1

The results were immediate. As law enforcement budgets exploded,

so did prison and jail populations. In 1991, the Sentencing Project

reported that the number of people behind bars in the United States

was unprecedented in world history, and that one-fourth of young Afri-

can American men were now under the control of the criminal justice

system. Despite the jaw- dropping impact of the “get-tough” movement

on the African American community, neither the Democrats nor the

Republicans revealed any inclination to slow the pace of incarceration.

To the contrary, in 1992, presidential candidate Bill Clinton vowed

that he would never permit any Republican to be perceived as tougher

on crime than he. True to his word, just weeks before the critical New

Hampshire primary, Clinton chose to fly home to Arkansas to oversee

the execution of Ricky Ray Rector, a mentally impaired black man who

had so little conception of what was about to happen to him that he

asked for the dessert from his last meal to be saved for him until the

morning. After the execution, Clinton remarked, “I can be nicked a lot,

but no one can say I’m soft on crime.”98

Once elected, Clinton endorsed the idea of a federal “three strikes

and you’re out” law, which he advocated in his 1994 State of the Union

address to enthusiastic applause on both sides of the aisle. The $30 bil-

lion crime bill sent to President Clinton in August 1994 was hailed as

a victory for the Democrats, who “were able to wrest the crime issue

from the Republicans and make it their own.”99 The bill created dozens

of new federal capital crimes, mandated life sentences for some “three-

strikers,” and authorized more than $16 billion for state prison grants

and expansion of state and local police forces. Far from resisting the

emergence of the new caste system, Clinton escalated the drug war

beyond what conservatives had imagined possible a decade earlier. As

the Justice Policy Institute has observed, “the Clinton Administration’s

‘tough on crime’ policies resulted in the largest increases in federal and

state inmate populations of any president in American history.”100

7 2 T H E N E W J I M   C R O W

Clinton eventually moved beyond crime and capitulated to the

conservative racial agenda on welfare. This move, like his “get tough”

rhetoric and policies, was part of a grand strategy articulated by the

“new Democrats” to appeal to the elusive white swing voters. In so

doing, Clinton—more than any other president—created the current

racial undercaste. He signed the Personal Responsibility and Work

Opportunity Reconciliation Act, which “ended welfare as we know it,”

replacing Aid to Families with Dependent Children (AFDC) with a

block grant to states called Temporary Assistance to Needy Families

(TANF). TANF imposed a five-year lifetime limit on welfare assistance,

as well as a permanent, lifetime ban on eligibility for welfare and food

stamps for anyone convicted of a felony drug offense—including sim-

ple possession of marijuana.

Despite claims that these radical policy changes were driven by fis-

cal conservatism—i.e., the desire to end big government and slash

budget deficits—the reality is that government was not reducing the

amount of money devoted to the management of the urban poor. It

was radically altering what the funds would be used for. The dramatic

shift toward punitiveness resulted in a massive reallocation of public

resources. By 1996, the penal budget doubled the amount that had

been allocated to AFDC or food stamps.101 Similarly, funding that had

once been used for public housing was being redirected to prison con-

struction. During Clinton’s tenure, Washington slashed funding for

public housing by $17 billion (a reduction of 61 percent) and boosted

corrections by $19 billion (an increase of 171 percent), “effectively

making the construction of prisons the nation’s main housing program

for the urban poor.”102

Clinton did not stop there. Determined to prove how “tough” he

could be on “them,” Clinton also made it easier for federally assisted

public housing projects to exclude anyone with a criminal history—an

extraordinarily harsh step in the midst of a drug war aimed at racial

and ethnic minorities. In his announcement of the “One Strike and

T H E R E B I R T H O F C A S T E 7 3

You’re Out” Initiative, Clinton explained: “From now on, the rule for

residents who commit crime and peddle drugs should be one strike

and you’re out.”103 The new rule promised to be “the toughest admis-

sion and eviction policy that HUD has implemented.”104 Thus, for

countless poor people, particularly racial minorities targeted by the

drug war, public housing was no longer available, leaving many of

them homeless—locked out not only of mainstream society, but their

own homes.

The law and order perspective, first introduced during the peak of

the Civil Rights Movement by rabid segregationists, had become nearly

hegemonic two decades later. By the mid-1990s, no serious alternatives

to the War on Drugs and “get-tough” movement were being enter-

tained in mainstream political discourse. Once again, in response to

a major disruption in the prevailing racial order—this time the civil

rights gains of the 1960s—a new system of racialized social control

was created by exploiting the vulnerabilities and racial resentments

of poor and working-class whites. More than 2 million people found

themselves behind bars at the turn of the twenty-first century, and

millions more were relegated to the margins of mainstream society,

banished to a political and social space not unlike Jim Crow, where

discrimination in employment, housing, and access to education was

perfectly legal, and where they could be denied the right to vote. The

system functioned relatively automatically, and the prevailing system

of racial meanings, identities, and ideologies already seemed natural.

Ninety percent of those admitted to prison for drug offenses in many

states were black or Latino, yet the mass incarceration of communi-

ties of color was explained in race-neutral terms, an adaptation to the

needs and demands of the current political climate. The New Jim Crow

was born.

2 T he L o c k do w n

We may think we know how the criminal justice system works. Television is overloaded with fictional dramas about police, crime, and prosecutors—shows such as Law & Order. These fictional

dramas, like the evening news, tend to focus on individual stories of

crime, victimization, and punishment, and the stories are typically told

from the point of view of law enforcement. A charismatic police officer,

investigator, or prosecutor struggles with his own demons while hero-

ically trying to solve a horrible crime. He ultimately achieves a person-

al and moral victory by finding the bad guy and throwing him in jail.

That is the made-for-TV version of the criminal justice system. It per-

petuates the myth that the primary function of the system is to keep

our streets safe and our homes secure by rooting out dangerous crimi-

nals and punishing them. These television shows, especially those that

romanticize drug-law enforcement, are the modern-day equivalent of

the old movies portraying happy slaves, the fictional gloss placed on a

brutal system of racialized oppression and control.

Those who have been swept within the criminal justice system

know that the way the system actually works bears little resemblance

to what happens on television or in movies. Full-blown trials of guilt

or innocence rarely occur; many people never even meet with an attor-

ney; witnesses are routinely paid and coerced by the government;

police regularly stop and search people for no reason whatsoever;

7 6 T H E N E W J I M   C R O W

penalties for many crimes are so severe that innocent people plead

guilty, accepting plea bargains to avoid harsh mandatory sentences;

and children, even as young as fourteen, are sent to adult prisons.

Rules of law and procedure, such as “guilt beyond a reasonable doubt”

or “probable cause” or “reasonable suspicion,” can easily be found in

court cases and law-school textbooks but are much harder to find in

real life.

In this chapter, we shall see how the system of mass incarceration

actually works. Our focus is the War on Drugs. The reason is simple:

nothing has contributed more to the systematic mass incarceration

of people of color in the United States than this ongoing war. Drug

offenses alone account for two-thirds of the rise in the federal prison

population and more than half the rise in the state prison population

between 1985 and 2000.1 Approximately a half-million people are

in prison or jail for a drug offense today, compared to an estimated

41,100 in 1980—an increase of 1,100 percent.2 Drug arrests have tri-

pled since 1980. As a result, more than 31 million people have been

arrested for drug offenses since the drug war began.3 To put the mat-

ter in perspective, consider this: there are more people in prisons and

jails today just for drug offenses than were incarcerated for all reasons

in 1980.4 The population under correctional control—on probation or

parole—has tripled as well, an increase driven almost entirely by drug

convictions and other nonviolent crimes.

Before we begin our tour of the drug war, it is worthwhile to get

a couple of myths out of the way. The first is that the war is aimed

at ridding the nation of drug “kingpins” or big-time dealers. Nothing

could be further from the truth. The vast majority of those arrested are

charged with relatively minor crimes. In 2005, for example, four out of

five drug arrests were for possession, and only one out of five was for

sales. Moreover, most people in state prison for drug offenses have no

history of violence or significant selling activity.5

The second myth is that the drug war is principally concerned

T H E L O C K D O W N 7 7

with dangerous drugs. Quite to the contrary, arrests for marijuana

possession—a drug less harmful than tobacco or alcohol— accounted

for nearly 80 percent of the growth in drug arrests in the 1990s.6

Despite the fact that most drug arrests are for nonviolent minor

offenses, the War on Drugs has ushered in an era of unprecedented

punitiveness.

The percentage of drug arrests that result in prison sentences (rath-

er than dismissal, community service, or probation) has quadrupled,

contributing to a prison-building boom the likes of which the world

has never seen. In two short decades, between 1980 and 2000, the

number of people incarcerated in our nation’s prisons and jails soared

from roughly 300,000 to more than 2 million. By the end of 2007, more

than 7 million Americans—or one in every 31 adults—were behind

bars, on probation, or on parole.7

We begin our exploration of the drug war at the point of entry—arrest

by the police—and then consider how the system of mass incarceration

is structured to reward mass drug arrests and facilitate the conviction

and imprisonment of an unprecedented number of Americans, whether

guilty or innocent. In subsequent chapters, we will consider how the

system specifically targets people of color and then relegates them to a

second-class status analogous to Jim Crow. At this point, we simply take

stock of the means by which the War on Drugs facilitates the roundup

and lockdown of an extraordinary percentage of the U.S. population.

Rules of the Game

Few legal rules meaningfully constrain the police in the War on Drugs.

This may sound like an overstatement, but upon examination it proves

accurate. The absence of significant constraints on the exercise of

police discretion is a key feature of the drug war’s design. It has made

the roundup of millions of Americans for nonviolent drug offenses

relatively easy.

7 8 T H E N E W J I M   C R O W

With only a few exceptions, the Supreme Court has seized every

opportunity to facilitate the drug war, primarily by eviscerating

Fourth Amendment protections against unreasonable searches and

seizures by the police. The rollback has been so pronounced that some

commentators charge that a virtual “drug exception” now exists to

the Bill of Rights. Shortly before his death, Justice Thurgood Marshall

felt compelled to remind his colleagues that there is, in fact, “no drug

exception” written into the text of the Constitution.8

Most Americans do not know what the Fourth Amendment of the

U.S. Constitution actually says or what it requires of the police. It

states, in its entirety:

The right of the people to be secure in their persons, hous-

es, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no warrants shall issue,

but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and

the person or things to be seized.

Courts and scholars agree that the Fourth Amendment governs

all searches and seizures by the police and that the amendment was

adopted in response to the English practice of conducting arbitrary

searches under general warrants to uncover seditious libels. The rou-

tine police harassment, arbitrary searches, and widespread police

intimidation of those subject to English rule helped to inspire the

American Revolution. Not surprisingly, then, preventing arbitrary

searches and seizures by the police was deemed by the Founding

Fathers an essential element of the U.S. Constitution. Until the War

on Drugs, courts had been fairly stringent about enforcing the Fourth

Amendment’s requirements.

Within a few years after the drug war was declared, however, many

legal scholars noted a sharp turn in the Supreme Court’s Fourth

Amendment jurisprudence. By the close of the Supreme Court’s

T H E L O C K D O W N 7 9

1990–91 term, it had become clear that a major shift in the relation-

ship between the citizens of this country and the police was under

way. Justice Stevens noted the trend in a powerful dissent issued in

California v. Acevedo, a case upholding the warrantless search of a bag

locked in a motorist’s trunk:

In the years [from 1982 to 1991] , the Court has heard argu-

ment in 30 Fourth Amendment cases involving narcot-

ics. In all but one, the government was the petitioner. All

save two involved a search or seizure without a warrant

or with a defective warrant. And, in all except three, the

Court upheld the constitutionality of the search or seizure.

In the meantime, the flow of narcotics cases through the

courts has steadily and dramatically increased. No impar-

tial observer could criticize this Court for hindering the

progress of the war on drugs. On the contrary, decisions

like the one the Court makes today will support the con-

clusion that this Court has become a loyal foot soldier in

the Executive’s fight against crime.9

Police searches of vehicles are but one example. Virtually all consti-

tutionally protected civil liberties have been undermined by the drug

war. The Court has been busy in recent years approving mandatory

drug testing of employees and students, upholding random searches

and sweeps of public schools and students, permitting police to obtain

search warrants based on an anonymous informant’s tip, expanding

the government’s wiretapping authority, legitimating the use of paid,

unidentified informants by police and prosecutors, approving the use

of helicopter surveillance of homes without a warrant, and allowing

the forfeiture of cash, homes, and other property based on unproven

allegations of illegal drug activity.

For our purposes here, we limit our focus to the legal rules crafted

by the Supreme Court that grant law enforcement a pecuniary interest

8 0 T H E N E W J I M   C R O W

in the drug war and make it relatively easy for the police to seize peo-

ple virtually anywhere—on public streets and sidewalks, on buses,

airplanes, and trains, or in any other public place—and usher them

behind bars. These new legal rules have ensured that anyone, virtually

anywhere, for any reason, can become a target of drug-law enforce-

ment activity.

Unreasonable Suspicion

Once upon a time, it was generally understood that the police could not

stop and search someone without a warrant unless there was probable

cause to believe that the individual was engaged in criminal activity.

That was a basic Fourth Amendment principle. In Terry v. Ohio, decid-

ed in 1968, the Supreme Court modified that understanding, but only

modestly, by ruling that if and when a police officer observes unusual

conduct by someone the officer reasonably believes to be dangerous

and engaged in criminal activity, the officer “is entitled for the protec-

tion of himself and others in the area” to conduct a limited search “to

discover weapons that might be used against the officer.”10 Known as

the stop-and-frisk rule, the Terry decision stands for the proposition

that, so long as a police officer has “reasonable articulable suspicion”

that someone is engaged in criminal activity and dangerous, it is con-

stitutionally permissible to stop, question, and frisk him or her—even

in the absence of probable cause.

Justice Douglas dissented in Terry on the grounds that “grant[ing]

police greater power than a magistrate [judge] is to take a long step

down the totalitarian path.”11 He objected to the notion that police

should be free to conduct warrantless searches whenever they sus-

pect someone of criminal activity, believing that dispensing with the

Fourth Amendment’s warrant requirement risked opening the door

to the same abuses that gave rise to the American Revolution. His

voice was a lonely one. Most commentators at the time agreed that

T H E L O C K D O W N 8 1

affording police the power and discretion to protect themselves dur-

ing an encounter with someone they believed to be dangerous is not

“unreasonable” under the Fourth Amendment.

History suggests Justice Douglas had the better of the argument. In

the years since Terry, stops, interrogations, and searches of ordinary

people driving down the street, walking home from the bus stop, or

riding the train have become commonplace—at least for people of col-

or. As Douglas suspected, the Court in Terry had begun its slide down

a very slippery slope. Today it is no longer necessary for the police to

have any reason to believe that people are engaged in criminal activ-

ity or actually dangerous to stop and search them. As long as you give

“consent,” the police can stop, interrogate, and search you for any rea-

son or no reason at all.

Just Say No

The first major sign that the Supreme Court would not allow the

Fourth Amendment to interfere with the prosecution of the War on

Drugs came in Florida v. Bostick. In that case, Terrance Bostick, a

twenty-eight-year-old African American, had been sleeping in the back

seat of a Greyhound bus on his way from Miami to Atlanta. Two police

officers, wearing bright green “raid” jackets and displaying their badg-

es and a gun, woke him with a start. The bus was stopped for a brief

layover in Fort Lauderdale, and the officers were “working the bus,”

looking for persons who might be carrying drugs. Bostick provided

them with his identification and ticket, as requested. The officers then

asked to search his bag. Bostick complied, even though he knew his bag

contained a pound of cocaine. The officers had no basis for suspecting

Bostick of any criminal activity, but they got lucky. They arrested Bos-

tick, and he was charged and convicted of trafficking cocaine.

Bostick’s search and seizure reflected what had become an increas-

ingly common tactic in the War on Drugs: suspicionless police sweeps

8 2 T H E N E W J I M   C R O W

of buses in interstate or intrastate travel. The resulting “interviews” of

passengers in these dragnet operations usually culminate in a request

for “consent” to search the passenger’s luggage.12 Never do the officers

inform passengers that they are free to remain silent or to refuse to

answer questions. By proceeding systematically in this manner, the

police are able to engage in an extremely high volume of searches. One

officer was able to search over three thousand bags in a nine-month

period employing these techniques.13 By and large, however, the hit

rates are low. For example, in one case, a sweep of one hundred buses

resulted in only seven arrests.14

On appeal, the Florida Supreme Court ruled in Bostick’s case that

the police officer’s conduct violated the Fourth Amendment’s prohi-

bition of unreasonable searches and seizures. The Fourth Amend-

ment, the court reasoned, forbids the police from seizing people and

searching them without some individualized suspicion that they have

committed or are committing a crime. The court thus overturned

Bostick’s conviction, ruling that the cocaine, having been obtained

illegally, was inadmissible. It also broadly condemned “bus sweeps”

in the drug war, comparing them to methods employed by totalitar-

ian regimes:

The evidence in this case has evoked images of other days,

under other flags, when no man traveled his nation’s roads

or railways without fear of unwarranted interruption, by

individuals who had temporary power in Government. . . .

This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it

white supremacist South Africa. Yet in Broward County,

Florida, these police officers approach every person on

board buses and trains (“that time permits”) and check

identification, tickets, ask to search luggage—all in the

name of “voluntary cooperation” with law enforcement.15

T H E L O C K D O W N 8 3

The U.S. Supreme Court reversed. The Court ruled that Bostick’s

encounter with the police was purely voluntary, and therefore he was

not “seized” within the meaning of the Fourth Amendment. Even if

Bostick did not feel free to leave when confronted by police at the back

of the bus, the proper question, according to the Court, was whether

“a reasonable person” in Bostick’s shoes would have felt free to ter-

minate the encounter. A reasonable person, the Court concluded,

would have felt free to sit there and refuse to answer the police offi-

cer’s questions, and would have felt free to tell the officer “No, you

can’t search my bag.” Accordingly, Bostick was not really “seized”

within the meaning of the Fourth Amendment, and the subsequent

search was purely consensual. The Court made clear that its deci-

sion was to govern all future drug sweeps, no matter what the cir-

cumstances of the targeted individual. Given the blanket nature of

the ruling, courts have found police encounters to be consensual in

truly preposterous situations. For example, a few years after Bostick,

the District of Columbia Court of Appeals applied the ruling to a

case involving a fourteen-year-old girl interrogated by the police,

concluding that she must be held to the same reasonable- person

standard.16

Prior to the Bostick decision, a number of lower courts had found

absurd the notion that “reasonable people” would feel empowered to

refuse to answer questions when confronted by the police. As federal

judge Prentiss Marshall explained, “The average person encountered

will feel obliged to stop and respond. Few will feel that they can walk

away or refuse to answer.”17 Professor Tracey Maclin put it this way:

“Common sense teaches that most of us do not have the chutzpah or

stupidity to tell a police officer to ‘get lost’ after he has stopped us and

asked us for identification or questioned us about possible criminal

conduct.”18 Other courts emphasized that granting police the free-

dom to stop, interrogate, and search anyone who consented would

8 4 T H E N E W J I M   C R O W

likely lead to racial and ethnic discrimination. Young black men

would be the likely targets, rather than older white women. Justice

Thurgood Marshall acknowledged as much in his dissent in Bostick,

noting “the basis of the decision to single out particular passengers

during a suspicionless sweep is less likely to be inarticulable than

unspeakable.”19

Studies have shown that Maclin’s common sense is correct: the over-

whelming majority of people who are confronted by police and asked

questions respond, and when asked to be searched, they comply.20 This

is the case even among those, like Bostick, who have every reason to

resist these tactics because they actually have something to hide. This

is no secret to the Supreme Court. The Court long ago acknowledged

that effective use of consent searches by the police depends on the

ignorance (and powerlessness) of those who are targeted. In Schneck-

loth v. Bustamonte, decided in 1973, the Court admitted that if waiver

of one’s right to refuse consent were truly “knowing, intelligent, and

voluntary,” it would “in practice create serious doubt whether consent

searches would continue to be conducted.”21 In other words, consent

searches are valuable tools for the police only because hardly anyone

dares to say no.

Poor Excuse

So-called consent searches have made it possible for the police to stop

and search just about anybody walking down the street for drugs. All

a police officer has to do in order to conduct a baseless drug investi-

gation is ask to speak with someone and then get their “consent” to

be searched. So long as orders are phrased as a question, compliance

is interpreted as consent. “May I speak to you?” thunders an officer.

“Will you put your arms up and stand against the wall for a search?”

Because almost no one refuses, drug sweeps on the sidewalk (and on

T H E L O C K D O W N 8 5

buses and trains) are easy. People are easily intimidated when the

police confront them, hands on their revolvers, and most have no idea

the question can be answered, “No.” But what about all the people

driving down the street? How do police extract consent from them?

The answer: pretext stops.

Like consent searches, pretext stops are favorite tools of law enforce-

ment in the War on Drugs. A classic pretext stop is a traffic stop moti-

vated not by any desire to enforce traffic laws, but instead motivated by

a desire to hunt for drugs in the absence of any evidence of illegal drug

activity. In other words, police officers use minor traffic violations as

an excuse—a pretext—to search for drugs, even though there is not a

shred of evidence suggesting the motorist is violating drug laws. Pre-

text stops, like consent searches, have received the Supreme Court’s

unequivocal blessing. Just ask Michael Whren and James Brown.

Whren and Brown, both of whom are African American, were

stopped by plainclothes officers in an unmarked vehicle in June 1993.

The police admitted to stopping Whren and Brown because they want-

ed to investigate them for imagined drug crimes, even though they did

not have probable cause or reasonable suspicion such crimes had actu-

ally been committed. Lacking actual evidence of criminal activity, the

officers decided to stop them based on a pretext—a traffic violation.

The officers testified that the driver failed to use his turn signal and

accelerated abruptly from a stop sign. Although the officers weren’t

really interested in the traffic violation, they stopped the pair any-

way because they had a “hunch” they might be in possession of illegal

drugs. According to the officers, they were right. The officers claimed

that the driver had a bag of cocaine sitting in his lap in plain view.

On appeal, Whren and Brown challenged their convictions on the

ground that pretextual stops violate the Fourth Amendment. They

argued that, because of the multitude of applicable traffic and equip-

ment regulations, and the difficulty of obeying all traffic rules perfectly

8 6 T H E N E W J I M   C R O W

at all times, the police will nearly always have an excuse to stop some-

one and go fishing for drugs. Anyone driving more than a few blocks is

likely to commit a traffic violation of some kind, such as failing to track

properly between lanes, failing to stop at precisely the correct distance

behind a crosswalk, failing to pause for precisely the right amount of

time at a stop sign, or failing to use a turn signal at the appropriate

distance from an intersection. Allowing the police to use minor traffic

violations as a pretext for baseless drug investigations would permit

them to single out anyone for a drug investigation without any evidence

of illegal drug activity whatsoever. That kind of arbitrary police con-

duct is precisely what the Fourth Amendment was intended to prohibit.

The Supreme Court rejected their argument, ruling that an offi-

cer’s motivations are irrelevant when evaluating the reasonableness

of police activity under the Fourth Amendment. It does not matter,

the Court declared, why the police are stopping motorists under the

Fourth Amendment, so long as some kind of traffic violation gives

them an excuse. The fact that the Fourth Amendment was specifi-

cally adopted by the Founding Fathers to prevent arbitrary stops and

searches was deemed unpersuasive. The Court ruled that the police

are free to use minor traffic violations as a pretext to conduct drug

investigations, even when there is no evidence of illegal drug activity.

A few months later, in Ohio v. Robinette, the Court took its twisted

logic one step further. In that case, a police officer pulled over Robert

Robinette, allegedly for speeding. After checking Robinette’s license

and issuing a warning (but no ticket), the officer then ordered Robi-

nette out of his vehicle, turned on a video camera in the officer’s car,

and then asked Robinette whether he was carrying any drugs and

would “consent” to a search. He did. The officer found a small amount

of marijuana in Robinette’s car, and a single pill, which turned out to

be methamphetamine.

The Ohio Supreme Court, reviewing the case on appeal, was obvi-

ously uncomfortable with the blatant fishing expedition for drugs. The

T H E L O C K D O W N 8 7

court noted that traffic stops were increasingly being used in the War

on Drugs to extract “consent” for searches, and that motorists may

not believe they are free to refuse consent and simply drive away. In

an effort to provide some minimal protection for motorists, the Ohio

court adopted a bright-line rule, that is, an unambiguous requirement

that officers tell motorists they are free to leave before asking for con-

sent to search their vehicles. At the very least, the justices reasoned,

motorists should know they have the right to refuse consent and to

leave, if they so choose.

The U.S. Supreme Court struck down this basic requirement as

“unrealistic.” In so doing, the Court made clear to all lower courts

that, from now on, the Fourth Amendment should place no meaning-

ful constraints on the police in the War on Drugs. No one needs to be

informed of their rights during a stop or search, and police may use

minor traffic stops as well as the myth of “consent” to stop and search

anyone they choose for imaginary drug crimes, whether or not any

evidence of illegal drug activity actually exists.

One might imagine that the legal rules described thus far would

provide more than enough latitude for the police to engage in an all-

out, no- holds-barred war on drugs. But there’s more. Even if motor-

ists, after being detained and interrogated, have the nerve to refuse

consent to a search, the police can arrest them anyway. In Atwater v.

City of Lago Vista, the Supreme Court held that the police may arrest

motorists for minor traffic violations and throw them in jail (even

if the statutory penalty for the traffic violation is a mere fine, not

jail time).

Another legal option for officers frustrated by a motorist’s refusal

to grant “consent” is to bring a drug- sniffing dog to the scene. This

option is available to police in traffic stops, as well as to law enforce-

ment officials confronted with resistant travelers in airports and in bus

or train stations who refuse to give the police consent to search their

luggage. The Supreme Court has ruled that walking a drug- sniffing

8 8 T H E N E W J I M   C R O W

dog around someone’s vehicle (or someone’s luggage) does not con-

stitute a “search,” and therefore does not trigger Fourth Amendment

scrutiny.22 If the dog alerts to drugs, then the officer has probable

cause to search without the person’s consent. Naturally, in most cases,

when someone is told that a drug-sniffing dog will be called, the seized

individual backs down and “consents” to the search, as it has become

apparent that the police are determined to conduct the search one way

or another.

Kissing Frogs

Court cases involving drug-law enforcement almost always involve

guilty people. Police usually release the innocent on the street—often

without a ticket, citation, or even an apology—so their stories are rarely

heard in court. Hardly anyone files a complaint, because the last thing

most people want to do after experiencing a frightening and intrusive

encounter with the police is show up at the police station where the

officer works and attract more attention to themselves. Many people,

especially poor people of color, fear and experience police harassment,

retaliation, and abuse. After having your car torn apart by the police

in a futile search for drugs, or being forced to lie spread-eagled on

the pavement while the police search you and interrogate you for no

reason at all, how much confidence do you have in law enforcement?

Do you expect to get a fair hearing? Those who try to find an attorney

to represent them in a lawsuit often learn that unless they have bro-

ken bones (and no criminal record), private attorneys are unlikely to

be interested in their case. Many people are shocked to discover that

what happened to them on the side of the road was not, in fact, against

the law.

The inevitable result is that the people who wind up in front of a judge

are usually guilty of some crime. The parade of guilty people through

America’s courtrooms gives the false impression to the public—as well

T H E L O C K D O W N 8 9

as to judges—that when the police have a “hunch,” it makes sense

to let them act on it. Judges tend to imagine the police have a sixth

sense—or some kind of special police training—that qualifies them

to identify people who are guilty of drug crimes without any evidence.

After all, they seem to be right so much of the time, don’t they?

The truth, however, is that most people stopped and searched in

the War on Drugs are perfectly innocent of any crime. The police have

received no training that enhances the likelihood they will spot the

guilty people as they drive by and leave everyone else alone. To the

contrary, tens of thousands of law enforcement officers have received

training that guarantees precisely the opposite. The Drug Enforcement

Agency (DEA) trains police to conduct utterly unreasonable and dis-

criminatory stops and searches throughout the United States.

Perhaps the best known of these training programs is Operation

Pipeline. The DEA launched Operation Pipeline in 1984 as part of the

Reagan administration’s rollout of the War on Drugs. The federal pro-

gram, administered by over three hundred state and local law enforce-

ment agencies, trains state and local law enforcement officers to use

pretextual traffic stops and consent searches on a large scale for drug

interdiction. Officers learn, among other things, how to use a minor

traffic violation as a pretext to stop someone, how to lengthen a rou-

tine traffic stop and leverage it into a search for drugs, how to obtain

consent from a reluctant motorist, and how to use drug- sniffing dogs

to obtain probable cause.23 By 2000, the DEA had directly trained

more than 25,000 officers in forty-eight states in Pipeline tactics and

helped to develop training programs for countless municipal and state

law enforcement agencies. In legal scholar Ricardo Bascuas’s words,

“Operation Pipeline is exactly what the Framers meant to prohibit: a

federally-run general search program that targets people without cause

for suspicion, particularly those who belong to disfavored groups.”24

The program’s success requires police to stop “staggering” num-

bers of people in shotgun fashion.25 This “volume” approach to drug

9 0 T H E N E W J I M   C R O W

enforcement sweeps up extraordinary numbers of innocent people. As

one California Highway Patrol Officer said, “It’s sheer numbers. . . .

You’ve got to kiss a lot of frogs before you find a prince.”26 Accord-

ingly, every year, tens of thousands of motorists find themselves

stopped on the side of the road, fielding questions about imaginary

drug activity, and then succumbing to a request for their vehicle to

be searched—sometimes torn apart—in the search for drugs. Most of

these stops and searches are futile. It has been estimated that 95 per-

cent of Pipeline stops yield no illegal drugs.27 One study found that up

to 99 percent of traffic stops made by federally funded narcotics task

forces result in no citation and that 98 percent of task-force searches

during traffic stops are discretionary searches in which the officer

searches the car with the driver’s verbal “consent” but has no other

legal authority to do so.28

The “drug-courier profiles” utilized by the DEA and other law

enforcement agencies for drug sweeps on highways, as well as in air-

ports and train stations, are notoriously unreliable. In theory, a drug-

courier profile reflects the collective wisdom and judgment of a law

enforcement agency’s officials. Instead of allowing each officer to rely

on his or her own limited experience and biases in detecting suspi-

cious behavior, a drug-courier profile affords every officer the advan-

tage of the agency’s collective experience and expertise. However, as

legal scholar David Cole has observed, “in practice, the drug-courier

profile is a scattershot hodgepodge of traits and characteristics so

expansive that it potentially justifies stopping anybody and every-

body.”29 The profile can include traveling with luggage, traveling with-

out luggage, driving an expensive car, driving a car that needs repairs,

driving with out-of-state license plates, driving a rental car, driving

with “mismatched occupants,” acting too calm, acting too nervous,

dressing casually, wearing expensive clothing or jewelry, being one of

the first to deplane, being one of the last to deplane, deplaning in the

middle, paying for a ticket in cash, using large-denomination curren-

T H E L O C K D O W N 9 1

cy, using small- denomination currency, traveling alone, traveling with

a companion, and so on. Even striving to obey the law fits the profile!

The Florida Highway Patrol Drug Courier Profile cautioned troopers

to be suspicious of “scrupulous obedience to traffic laws.”30 As Cole

points out, “such profiles do not so much focus an investigation as

provide law enforcement officials a ready-made excuse for stopping

whomever they please.”31

The Supreme Court has allowed use of drug-courier profiles as

guides for the exercise of police discretion. Although it has indicated

that the mere fact that someone fits a profile does not automatically

constitute reasonable suspicion justifying a stop, courts routinely defer

to these profiles, and the Court has yet to object. As one judge said after

conducting a review of drug-courier profile decisions: “Many courts

have accepted the profile, as well as the Drug Enforcement Agency’s

scattershot enforcement efforts, unquestioningly, mechanistically, and

dispositively.”32

It Pays to Play

Clearly, the rules of the drug war game are designed to allow for the

roundup of an unprecedented number of Americans. The number of

annual drug arrests more than tripled between 1980 and 2005, as

drug sweeps and suspicionless stops and searches proceeded in record

numbers.33

Still, it is fair to wonder why the police would choose to arrest such

an astonishing percentage of the American public for minor drug

crimes. The fact that police are legally allowed to engage in a wholesale

roundup of people suspected of minor drug crimes does not answer

the question why they would choose to do so, particularly when most

police departments have far more serious crimes to prevent and solve.

Why would police prioritize drug-law enforcement? Drug use and

abuse is nothing new; in fact, it was on the decline, not on the rise,

9 2 T H E N E W J I M   C R O W

when the War on Drugs began. So why make drug-law enforcement a

priority now?

Once again, the answer lies in the system’s design. Every system of

control depends for its survival on the tangible and intangible benefits

that are provided to those who are responsible for the system’s mainte-

nance and administration. This system is no exception.

At the time the drug war was declared, illegal drug use and abuse

was not a pressing concern in most communities. The announcement

of a War on Drugs was therefore met with some confusion and resis-

tance within law enforcement, as well as among some conservative

commentators.34 The federalization of drug crime violated the con-

servative tenet of states’ rights and local control, as street crime was

typically the responsibility of local law enforcement. Many state and

local law enforcement officials were less than pleased with the attempt

by the federal government to assert itself in local crime fighting, view-

ing the new drug war as an unwelcome distraction. Participation in

the drug war required a diversion of resources away from more serious

crimes, such as murder, rape, grand theft, and violent assault—all of

which were of far greater concern to most communities than illegal

drug use.

The resistance within law enforcement to the drug war created

something of a dilemma for the Reagan administration. In order for

the war to actually work—that is, in order for it to succeed in achiev-

ing its political goals—it was necessary to build a consensus among

state and local law enforcement agencies that the drug war should be a

top priority in their hometowns. The solution: cash. Huge cash grants

were made to those law enforcement agencies that were willing to

make drug-law enforcement a top priority. The new system of control

is traceable, to a significant degree, to a massive bribe offered to state

and local law enforcement by the federal government.

In 1988, at the behest of the Reagan administration, Congress

revised the program that provides federal aid to law enforcement,

T H E L O C K D O W N 9 3

renaming it the Edward Byrne Memorial State and Local Law Enforce-

ment Assistance Program after a New York City police officer who was

shot to death while guarding the home of a drug-case witness. The

Byrne program was designed to encourage every federal grant recipi-

ent to help fight the War on Drugs. Millions of dollars in federal aid

have been offered to state and local law enforcement agencies willing

to wage the war. This federal grant money has resulted in the prolif-

eration of narcotics task forces, including those responsible for high-

way drug interdiction. Nationally, narcotics task forces make up about

40 percent of all Byrne grant funding, but in some states as much as

90 percent of all Byrne grant funds go toward specialized narcotics

task forces.35 In fact, it is questionable whether any specialized drug

enforcement activity would exist in some states without the Byrne

program.

Other forms of valuable aid have been offered as well. The DEA

has offered free training, intelligence, and technical support to state

highway patrol agencies that are willing to commit their officers to

highway drug interdiction. The Pentagon, for its part, has given away

military intelligence and millions of dollars in firepower to state and

local agencies willing to make the rhetorical war a literal one.

Almost immediately after the federal dollars began to flow, law

enforcement agencies across the country began to compete for fund-

ing, equipment, and training. By the late 1990s, the overwhelming

majority of state and local police forces in the country had availed

themselves of the newly available resources and added a significant

military component to buttress their drug-war operations. According

to the Cato Institute, in 1997 alone, the Pentagon handed over more

than 1.2 million pieces of military equipment to local police depart-

ments.36 Similarly, the National Journal reported that between Janu-

ary 1997 and October 1999, the agency handled 3.4 million orders

of Pentagon equipment from over eleven thousand domestic police

agencies in all fifty states. Included in the bounty were “253 aircraft

9 4 T H E N E W J I M   C R O W

(including six- and seven-passenger airplanes, UH-60 Blackhawk and

UH-1 Huey helicopters), 7,856 M-16 rifles, 181 grenade launchers,

8,131 bulletproof helmets, and 1,161 pairs of night-vision goggles.”37

A retired police chief in New Haven, Connecticut, told The New York

Times, “I was offered tanks, bazookas, anything I wanted.”38

Waging War

In barely a decade, the War on Drugs went from being a political slo-

gan to an actual war. Now that police departments were suddenly flush

with cash and military equipment earmarked for the drug war, they

needed to make use of their new resources. As described in a Cato

Institute report, paramilitary units (most commonly called Special

Weapons and Tactics, or SWAT, teams) were quickly formed in virtu-

ally every major city to fight the drug war.39

SWAT teams originated in the 1960s and gradually became more

common in the 1970s, but until the drug war, they were used rarely,

primarily for extraordinary emergency situations such as hostage tak-

ings, hijackings, or prison escapes. That changed in the 1980s, when

local law enforcement agencies suddenly had access to cash and mili-

tary equipment specifically for the purpose of conducting drug raids.

Today, the most common use of SWAT teams is to serve narcot-

ics warrants, usually with forced, unannounced entry into the home.

In fact, in some jurisdictions drug warrants are served only by SWAT

teams—regardless of the nature of the alleged drug crime. As the

Miami Herald reported in 2002, “Police say they want [SWAT teams] in

case of a hostage situation or a Columbine-type incident, but in prac-

tice the teams are used mainly to serve search warrants on suspected

drug dealers. Some of these searches yield as little as a few grams of

cocaine or marijuana.” 40

The rate of increase in the use of SWAT teams has been astonishing.

In 1972, there were just a few hundred paramilitary drug raids per

T H E L O C K D O W N 9 5

year in the United States. By the early 1980s, there were three thou-

sand annual SWAT deployments, by 1996 there were thirty thousand,

and by 2001 there were forty thousand.41 The escalation of military

force was quite dramatic in cities throughout the United States. In

the city of Minneapolis, Minnesota, for example, its SWAT team was

deployed on no-knock warrants thirty-five times in 1986, but in 1996

that same team was deployed for drug raids more than seven hundred

times.42

Drug raids conducted by SWAT teams are not polite encounters. In

countless situations in which police could easily have arrested some-

one or conducted a search without a military-style raid, police blast

into people’s homes, typically in the middle of the night, throwing

grenades, shouting, and pointing guns and rifles at anyone inside,

often including young children. In recent years, dozens of people have

been killed by police in the course of these raids, including elderly

grandparents and those who are completely innocent of any crime.

Criminologist Peter Kraska reports that between 1989 and 2001 at

least 780 cases of flawed paramilitary raids reached the appellate level,

a dramatic increase over the 1980s, when such cases were rare, or ear-

lier, when they were nonexistent.43 Many of these cases involve people

killed in botched raids.

Alberta Spruill, a fifty-seven-year-old city worker from Harlem, is

among the fallen. On May 16, 2003, a dozen New York City police

officers stormed her apartment building on a no-knock warrant, act-

ing on a tip from a confidential informant who told them a “convicted

felon” was selling drugs on the sixth floor. The informant had actually

been in jail at the time he said he’d bought drugs in the apartment, and

the target of the raid had been arrested four days before, but the officers

didn’t check and didn’t even interview the building superintendent.

The only resident in the building was Alberta, described by friends as

a “devout churchgoer.” Before entering, police deployed a flash-bang

grenade, resulting in a blinding, deafening explosion. Alberta went

9 6 T H E N E W J I M   C R O W

into cardiac arrest and died two hours later. The death was ruled a

homicide but no one was indicted.

Those who survive SWAT raids are generally traumatized by the

event. Not long after Spruill’s death, Manhattan Borough President

C. Virginia Fields held hearings on SWAT practices in New York

City. According to the Village Voice, “Dozens of black and Latino

victims—nurses, secretaries, and former officers—packed her cham-

bers airing tales, one more horrifying than the next. Most were unable

to hold back tears as they described police ransacking their homes,

handcuffing children and grandparents, putting guns to their heads,

and being verbally (and often physically) abusive. In many cases, vic-

tims had received no follow-up from the NYPD, even to fix busted

doors or other physical damage.” 44

Even in small towns, such as those in Dodge County, Wisconsin,

SWAT teams treat routine searches for narcotics as a major battlefront

in the drug war. In Dodge County, police raided the mobile home of

Scott Bryant in April 1995, after finding traces of marijuana in his

garbage. Moments after busting into the mobile home, police shot

Bryant—who was unarmed—killing him. Bryant’s eight-year-old son

was asleep in the next room and watched his father die while waiting

for an ambulance. The district attorney theorized that the shooter’s

hand had clenched in “sympathetic physical reaction” as his other hand

reached for handcuffs. A spokesman for the Beretta company called

this unlikely because the gun’s double-action trigger was designed to

prevent unintentional firing. The Dodge County sheriff compared the

shooting to a hunting accident.45

SWAT raids have not been limited to homes, apartment buildings,

or public housing projects. Public high schools have been invaded

by SWAT teams in search of drugs. In November 2003, for example,

police raided Stratford High School in Goose Creek, South Carolina.

The raid was recorded by the school’s surveillance cameras as well as

a police camera. The tapes show students as young as fourteen forced

T H E L O C K D O W N 9 7

to the ground in handcuffs as officers in SWAT team uniforms and

bulletproof vests aim guns at their heads and lead a drug- sniffing dog

to tear through their book bags. The raid was initiated by the school’s

principal, who was suspicious that a single student might be dealing

marijuana. No drugs or weapons were found during the raid and no

charges were filed. Nearly all of the students searched and seized were

students of color.

The transformation from “community policing” to “military polic-

ing,” began in 1981, when President Reagan persuaded Congress to

pass the Military Cooperation with Law Enforcement Act, which

encouraged the military to give local, state, and federal police access

to military bases, intelligence, research, weaponry, and other equip-

ment for drug interdiction. That legislation carved a huge exception

to the Posse Comitatus Act, the Civil War–era law prohibiting the

use of the military for civilian policing. It was followed by Reagan’s

National Security Decision Directive, which declared drugs a threat to

U.S. national security, and provided for yet more cooperation between

local, state, and federal law enforcement. In the years that followed,

Presidents George Bush and Bill Clinton enthusiastically embraced

the drug war and increased the transfer of military equipment, tech-

nology, and training to local law enforcement, contingent, of course,

on the willingness of agencies to prioritize drug-law enforcement and

concentrate resources on arrests for illegal drugs.

The incentives program worked. Drug arrests skyrocketed as

SWAT teams swept through urban housing projects, highway patrol

agencies organized drug interdiction units on the freeways, and

stop-and- frisk programs were set loose on the streets. Generally,

the financial incentives offered to local law enforcement to pump up

their drug arrests have not been well publicized, leading the average

person to conclude reasonably (but mistakenly) that when their local

police departments report that drug arrests have doubled or tripled

in a short period of time, the arrests reflect a surge in illegal drug

9 8 T H E N E W J I M   C R O W

activity, rather than an infusion of money and an intensified enforce-

ment effort.

One exception is a 2001 report by the Capital Times in Madison,

Wisconsin. The Times reported that as of 2001, sixty-five of the state’s

eighty-three local SWAT teams had come into being since 1980, and

that the explosion of SWAT teams was traceable to the Pentagon’s

weaponry giveaway program, as well as to federal programs that pro-

vide money to local police departments for drug control. The paper

explained that, in the 1990s, Wisconsin police departments were

given nearly a hundred thousand pieces of military equipment. And

although the paramilitary units were often justified to city councils

and skeptical citizens as essential to fight terrorism or deal with hos-

tage situations, they were rarely deployed for those reasons but instead

were sent to serve routine search warrants for drugs and make drug

arrests. In fact, the Times reported that police departments had an

extraordinary incentive to use their new equipment for drug enforce-

ment: the extra federal funding the local police departments received

was tied to antidrug policing. The size of the disbursements was linked

to the number of city or county drug arrests. Each arrest, in theory,

would net a given city or county about $153 in state and federal fund-

ing. Non-drug-related policing brought no federal dollars, even for vio-

lent crime. As a result, when Jackson County, Wisconsin, quadrupled

its drug arrests between 1999 and 2000, the county’s federal subsidy

quadrupled too.46

Finders Keepers

As if the free military equipment, training, and cash grants were not

enough, the Reagan administration provided law enforcement with yet

another financial incentive to devote extraordinary resources to drug

law enforcement, rather than more serious crimes: state and local law

enforcement agencies were granted the authority to keep, for their own

T H E L O C K D O W N 9 9

use, the vast majority of cash and assets they seized when waging the

drug war. This dramatic change in policy gave state and local police an

enormous stake in the War on Drugs—not in its success, but in its per-

petual existence. Law enforcement gained a pecuniary interest not only

in the forfeited property, but in the profitability of the drug market itself.

Modern drug forfeiture laws date back to 1970, when Congress

passed the Comprehensive Drug Abuse Prevention and Control Act.

The act included a civil forfeiture provision authorizing the govern-

ment to seize and forfeit drugs, drug manufacturing and storage equip-

ment, and conveyances used to transport drugs. As legal scholars Eric

Blumenson and Eva Nilsen have explained, the provision was justified

as an effort “to forestall the spread of drugs in a way criminal penalties

could not—by striking at its economic roots.” 47 When a drug dealer is

sent to jail, there are many others ready and willing to take his place,

but seizing the means of production, some legislators reasoned, may

shut down the trafficking business for good. Over the years, the list

of properties subject to forfeiture expanded greatly, and the required

connection to illegal drug activity became increasingly remote, leading

to many instances of abuse. But it was not until 1984, when Congress

amended the federal law to allow federal law enforcement agencies to

retain and use any and all proceeds from asset forfeitures, and to allow

state and local police agencies to retain up to 80 percent of the assets’

value, that a true revolution occurred.

Suddenly, police departments were capable of increasing the size of

their budgets, quite substantially, simply by taking the cash, cars, and

homes of people suspected of drug use or sales. At the time the new

rules were adopted, the law governing civil forfeiture was so heavily

weighted in favor of the government that fully 80 percent of forfeitures

went uncontested. Property or cash could be seized based on mere

suspicion of illegal drug activity, and the seizure could occur without

notice or hearing, upon an ex parte showing of mere probable cause to

believe that the property had somehow been “involved” in a crime. The

10 0 T H E N E W J I M   C R O W

probable cause showing could be based on nothing more than hearsay,

innuendo, or even the paid, self-serving testimony of someone with

interests clearly adverse to the property owner. Neither the owner of

the property nor anyone else need be charged with a crime, much less

found guilty of one. Indeed, a person could be found innocent of any

criminal conduct and the property could still be subject to forfeiture.

Once the property was seized, the owner had no right of counsel, and

the burden was placed on him to prove the property’s “innocence.”

Because those who were targeted were typically poor or of moder-

ate means, they often lacked the resources to hire an attorney or pay

the considerable court costs. As a result, most people who had their

cash or property seized did not challenge the government’s action,

especially because the government could retaliate by filing criminal

charges—baseless or not.

Not surprisingly, this drug forfeiture regime proved highly lucra-

tive for law enforcement, offering more than enough incentive to wage

the War on Drugs. According to a report commissioned by the Depart-

ment of Justice, between 1988 and 1992 alone, Byrne-funded drug

task forces seized over $1 billion in assets.48 Remarkably, this figure

does not include drug task forces funded by the DEA or other federal

agencies.

The actual operation of drug forfeiture laws seriously undermines

the usual rhetoric offered in support of the War on Drugs, namely that

it is the big “kingpins” that are the target of the war. Drug forfeiture

laws are frequently used to allow those with assets to buy their free-

dom, while drug users and small-time dealers with few assets to trade

are subjected to lengthy prison terms. In Massachusetts, for example,

an investigation by journalists found that on average a “payment of

$50,000 in drug profits won a 6.3 year reduction in a sentence for

dealers,” while agreements of $10,000 or more bought elimination

or reduction of trafficking charges in almost three-fourths of such

cases.49 Federal drug forfeiture laws are one reason, Blumenson and

T H E L O C K D O W N 10 1

Nilsen note, “why state and federal prisons now confine large numbers

of men and women who had relatively minor roles in drug distribution

networks, but few of their bosses.”50

The Shakedown

Quite predictably, the enormous economic rewards created by both

the drug forfeiture and Byrne grant laws have created an environment

in which a very fine line exists between the lawful and the unlaw-

ful taking of other people’s money and property—a line so thin that

some officers disregard the formalities of search warrants, probable

cause, and reasonable suspicion altogether. In United States v. Reese,

for example, the Ninth Circuit Court of Appeals described a drug task

force completely corrupted by its dependence on federal drug money.

Operating as a separate unit within the Oakland Housing Authority,

the task force behaved, in the words of one officer, “more or less like

a wolfpack,” driving up in police vehicles and taking “anything and

everything we saw on the street corner.”51 The officers were under tre-

mendous pressure from their commander to keep their arrest numbers

up, and all of the officers were aware that their jobs depended on the

renewal of a federal grant. The task force commander emphasized that

they would need statistics to show that the grant money was well spent

and sent the task force out to begin a shift with comments like, “Let’s

go out and kick ass,” and “Everybody goes to jail tonight for every-

thing, right?”52

Journalists and investigators have documented numerous other

instances in which police departments have engaged in illegal shake-

downs, searches, and threats in search of forfeitable property and

cash. In Florida, reporters reviewed nearly one thousand videotapes of

highway traffic stops and found that police had used traffic violations

as an excuse—or pretext—to confiscate “tens of thousands of dollars

from motorists against whom there [was] no evidence of wrongdoing,”

10 2 T H E N E W J I M   C R O W

frequently taking the money without filing any criminal charges.53

Similarly, in Louisiana, journalists reported that Louisiana police

engaged in massive pretextual stops in an effort to seize cash, with the

money diverted to police department ski trips and other unauthorized

uses.54 And in Southern California, a Los Angeles Sheriff’s Department

employee reported that deputies routinely planted drugs and falsified

police reports to establish probable cause for cash seizures.55

Lots of small seizures can be nearly as profitable, and require the

expenditure of fewer investigative resources, than a few large busts.

The Western Area Narcotics Task Force (WANT) became the focus of a

major investigation in 1996 when almost $66,000 was discovered hid-

den in its headquarters. The investigation revealed that the task force

seized large amounts of money, but also small amounts, and then dis-

pensed it freely, unconstrained by reporting requirements or the task

force’s mission. Some seizures were as small as eight cents. Another

seizure of ninety-three cents prompted the local newspaper to observe

that “once again the officers were taking whatever the suspects were

carrying, even though by no stretch could pocket change be construed

to be drug money.”56

In 2000, Congress passed the Civil Asset Forfeiture Reform Act,

which was meant to address many of the egregious examples of abuse

of civil forfeiture. Some of the most widely cited examples involved

wealthy whites whose property was seized. One highly publicized case

involved a reclusive millionaire, Donald Scott, who was shot and killed

when a multiagency task force raided his two-hundred-acre Malibu

ranch purportedly in search of marijuana plants. They never found

a single marijuana plant in the course of the search. A subsequent

investigation revealed that the primary motivation for the raid was

the possibility of forfeiting Scott’s property. If the forfeiture had been

successful, it would have netted the law enforcement agencies about

$5 million in assets.57 In another case, William Munnerlynn had his

Learjet seized by the DEA after he inadvertently used it to transport

T H E L O C K D O W N 10 3

a drug dealer. Though charges were dropped against him within sev-

enty-two hours, the DEA refused to return his Learjet. Only after five

years of litigation and tens of thousands of dollars in legal fees was he

able to secure return of his jet. When the jet was returned, it had sus-

tained $100,000 worth of damage.58 Such cases were atypical but got

the attention of Congress.

The Reform Act resulted in a number of significant due-process chang-

es, such as shifting the burden of proof onto the government, eliminat-

ing the requirement that an owner post a cost bond, and providing some

minimal hardship protections for innocent parties who stand to lose

their homes. These reforms, however, do not go nearly far enough.

Arguably the most significant reform is the creation of an “innocent

owner” defense. Prior to the Reform Act, the Supreme Court had ruled

that the guilt or innocence of the property’s owner was irrelevant to

the property’s guilt—a ruling based on the archaic legal fiction that a

piece of property could be “guilty” of a crime. The act remedied this

insanity to some extent; it provides an “innocent owner” defense to

those whose property has been seized. However, the defense is serious-

ly undermined by the fact that the government’s burden of proof is so

low—the government need only establish by a “preponderance of the

evidence” that the property was involved in the commission of a drug

crime. This standard of proof is significantly lower than the “clear and

convincing evidence” standard contained in an earlier version of the

legislation, and it is far lower than the “proof beyond a reasonable

doubt” standard for criminal convictions.

Once the government meets this minimal burden, the burden then

shifts to the owner to prove that she “did not know of the conduct

giving rise to the forfeiture” or that she did “all that reasonably could

be expected under the circumstances to terminate such use of the

property.” This means, for example, that a woman who knew that

her husband occasionally smoked pot could have her car forfeited to

the government because she allowed him to use her car. Because the

10 4 T H E N E W J I M   C R O W

“car” was guilty of transporting someone who had broken a drug law

at some time, she could legally lose her only form of transportation,

even though she herself committed no crime. Indeed, women who are

involved in some relationship with men accused of drug crimes, typi-

cally husbands or boyfriends, are among the most frequent claimants

in forfeiture proceedings.59 Courts have not been forgiving of women

in these circumstances, frequently concluding that “the nature and

circumstances of the marital relationship may give rise to an inference

of knowledge by the spouse claiming innocent ownership.” 60

There are other problems with this framework, not the least of which

being that the owner of the property is not entitled to the appoint-

ment of counsel in the forfeiture proceeding, unless he or she has been

charged with a crime. The overwhelming majority of forfeiture cases

do not involve any criminal charges, so the vast majority of people who

have their cash, cars, or homes seized must represent themselves in

court, against the federal government. Oddly, someone who has actu-

ally been charged with a crime is entitled to the appointment of coun-

sel in civil forfeiture proceedings, but those whose property has been

forfeited but whose conduct did not merit criminal charges are on their

own. This helps to explain why up to 90 percent of forfeiture cases

in some jurisdictions are not challenged. Most people simply cannot

afford the considerable cost of hiring an attorney. Even if the cost is

not an issue, the incentives are all wrong. If the police seized your car

worth $5,000, or took $500 cash from your home, would you be will-

ing to pay an attorney more than your assets are worth to get them

back? If you haven’t been charged with a crime, are you willing to risk

the possibility that fighting the forfeiture might prompt the govern-

ment to file criminal charges against you?

The greatest failure of the Reform Act, however, has nothing to

do with one’s due process rights once property has been seized in a

drug investigation. Despite all of the new procedural rules and formal

protections, the law does not address the single most serious prob-

T H E L O C K D O W N 10 5

lem associated with drug forfeiture laws: the profit motive in drug-law

enforcement. Under the new law, drug busts motivated by the desire

to seize cash, cars, homes, and other property are still perfectly legal.

Law enforcement agencies are still allowed, through revenue- sharing

agreements with the federal government, to keep seized assets for their

own use. Clearly, so long as law enforcement is free to seize assets

allegedly associated with illegal drug activity— without ever charging

anyone with a crime— local police departments, as well as state and

federal law enforcement agencies, will continue to have a direct pecu-

niary interest in the profitability and longevity of the drug war. The

basic structure of the system remains intact.

None of this is to suggest that the financial rewards offered for police

participation in the drug war are the only reason that law enforce-

ment decided to embrace the war with zeal. Undoubtedly, the polit-

ical and cultural context of the drug war— particularly in the early

years— encouraged the roundup. When politicians declare a drug war,

the police (our domestic warriors) undoubtedly feel some pressure to

wage it. But it is doubtful that the drug war would have been launched

with such intensity on the ground but for the bribes offered for law

enforcement’s cooperation.

Today the bribes may no longer be necessary. Now that the SWAT

teams, the multiagency drug task forces, and the drug enforcement

agenda have become a regular part of federal, state, and local law

enforcement, it appears the drug war is here to stay. Funding for

the Byrne- sponsored drug task forces had begun to dwindle during

President Bush’s tenure, but Barack Obama, as a presidential candi-

date, promised to revive the Byrne grant program, claiming that it is

“critical to creating the anti-drug task forces our communities need.” 61

Obama honored his word following the election, drastically increasing

funding for the Byrne grant program despite its abysmal track record.

The Economic Recovery Act of 2009 included more than $2 billion in

new Byrne funding and an additional $600 million to increase state

10 6 T H E N E W J I M   C R O W

and local law enforcement across the country.62 Relatively little orga-

nized opposition to the drug war currently exists, and any dramatic

effort to scale back the war may be publicly condemned as “soft” on

crime. The war has become institutionalized. It is no longer a special

program or politicized project; it is simply the way things are done.

Legal Misrepresentation

So far, we have seen that the legal rules governing the drug war ensure

that extraordinary numbers of people will be swept into the criminal

justice system—arrested on drug charges, often for very minor offens-

es. But what happens after arrest? How does the design of the system

help to ensure the creation of a massive undercaste?

Once arrested, one’s chances of ever being truly free of the system

of control are slim, often to the vanishing point. Defendants are typi-

cally denied meaningful legal representation, pressured by the threat

of a lengthy sentence into a plea bargain, and then placed under for-

mal control—in prison or jail, on probation or parole. Most Americans

probably have no idea how common it is for people to be convicted

without ever having the benefit of legal representation, or how many

people plead guilty to crimes they did not commit because of fear of

mandatory sentences.

Tens of thousands of poor people go to jail every year without ever

talking to a lawyer, and those who do meet with a lawyer for a drug

offense often spend only a few minutes discussing their case and

options before making a decision that will profoundly affect the rest of

their lives. As one public defender explained to the Los Angeles Times,

“They are herded like cattle [into the courtroom lockup], up at 3 or

4 in the morning. Then they have to make decisions that affect the rest

of their lives. You can imagine how stressful it is.” 63

More than forty years ago, in Gideon v. Wainwright, the Supreme

Court ruled that poor people accused of serious crimes were entitled

T H E L O C K D O W N 10 7

to counsel. Yet thousands of people are processed through America’s

courts annually either with no lawyer at all or with a lawyer who does

not have the time, resources, or, in some cases, the inclination to pro-

vide effective representation. In Gideon, the Supreme Court left it to

state and local governments to decide how legal services should be

funded. However, in the midst of a drug war, when politicians com-

pete with each other to prove how “tough” they can be, funding pub-

lic defender offices and paying private attorneys to represent those

accused of crimes has been a low priority.

Approximately 80 percent of criminal defendants are indigent and

thus unable to hire a lawyer.64 Yet our nation’s public defender sys-

tem is woefully inadequate. The most visible sign of the failed system

is the astonishingly large caseloads public defenders routinely carry,

making it impossible for them to provide meaningful representation

to their clients. Sometimes defenders have well over one hundred cli-

ents at a time; many of these clients are facing decades behind bars or

life imprisonment. Too often the quality of court-appointed counsel is

poor because the miserable working conditions and low pay discour-

age good attorneys from participating in the system. And some states

deny representation to impoverished defendants on the theory that

somehow they should be able to pay for a lawyer, even though they are

scarcely able to pay for food or rent. In Virginia, for example, fees paid

to court-appointed attorneys for representing someone charged with a

felony that carries a sentence of less than twenty years are capped at

$428. And in Wisconsin, more than eleven thousand poor people go

to court without representation every year because anyone who earns

more than $3,000 per year is considered able to afford a lawyer.65 In

Lake Charles, Louisiana, the public defender office has only two inves-

tigators for the 2,500 new felony cases and 4,000 new misdemeanor

cases assigned to the office each year.66 The NAACP Legal Defense

Fund and the Southern Center for Human Rights in Atlanta sued the

city of Gulfport, Mississippi, alleging that the city operated a “modern

10 8 T H E N E W J I M   C R O W

day debtor’s prison” by jailing poor people who are unable to pay their

fines and denying them the right to lawyers.

In 2004, the American Bar Association released a report on the sta-

tus of indigent defense, concluding that, “All too often, defendants

plead guilty, even if they are innocent, without really understanding

their legal rights or what is occurring. Sometimes the proceedings

reflect little or no recognition that the accused is mentally ill or does

not adequately understand English. The fundamental right to a lawyer

that Americans assume applies to everyone accused of criminal con-

duct effectively does not exist in practice for countless people across

the United States.” 67

Even when people are charged with extremely serious crimes, such

as murder, they may find themselves languishing in jail for years with-

out meeting with an attorney, much less getting a trial. One extreme

example is the experience of James Thomas, an impoverished day

laborer in Baton Rouge, Louisiana, who was charged with murder in

1996 and waited eight and a half years for his case to go to trial. It

never did. His mother finally succeeded in getting his case dismissed

after scraping together $500 to hire an attorney, who demonstrated to

the court that, in the time Thomas spent waiting for his case to go to

trial, his alibi witness had died of kidney disease. Another Louisiana

man, Johnny Lee Ball, was convicted of second-degree murder and sen-

tenced to life in prison without the possibility of parole after meeting

with a public defender for just eleven minutes before trial. If indicted

murderers have a hard time getting meaningful representation, what

are the odds that small-time drug dealers find themselves represented

by a zealous advocate? As David Carroll, the research director for the

National Legal Aid & Defender Association explained to USA Today,

“There’s a real disconnect in this country between what people perceive

is the state of indigent defense and what it is. I attribute that to shows

like Law & Order, where the defendant says, ‘I want a lawyer,’ and all

of a sudden Legal Aid appears in the cell. That’s what people think.” 68

T H E L O C K D O W N 10 9

Children caught up in this system are the most vulnerable and yet are

the least likely to be represented by counsel. In 1967, the U.S. Supreme

Court ruled in In re Gault that children under the age of eighteen have

the right to legal assistance with any criminal charges filed against

them. In practice, however, children routinely “waive” their right to

counsel in juvenile proceedings. In some states, such as Ohio, as many

as 90 percent of children charged with criminal wrongdoing are not

represented by a lawyer. As one public defender explained, “The kids

come in with their parents, who want to get this dealt with as quickly

as possible, and they say, ‘You did it, admit it.’ If people were informed

about what could be done, they might actually ask for help.” 69

Bad Deal

Almost no one ever goes to trial. Nearly all criminal cases are resolved

through plea bargaining—a guilty plea by the defendant in exchange

for some form of leniency by the prosecutor. Though it is not widely

known, the prosecutor is the most powerful law enforcement official

in the criminal justice system. One might think that judges are the

most powerful, or even the police, but in reality the prosecutor holds

the cards. It is the prosecutor, far more than any other criminal justice

official, who holds the keys to the jailhouse door.

After the police arrest someone, the prosecutor is in charge. Few

rules constrain the exercise of his or her discretion. The prosecutor is

free to dismiss a case for any reason or no reason at all. The prosecutor

is also free to file more charges against a defendant than can realisti-

cally be proven in court, so long as probable cause arguably exists—a

practice known as overcharging.

The practice of encouraging defendants to plead guilty to crimes,

rather than affording them the benefit of a full trial, has always carried

its risks and downsides. Never before in our history, though, have such

an extraordinary number of people felt compelled to plead guilty, even

1 10 T H E N E W J I M   C R O W

if they are innocent, simply because the punishment for the minor,

nonviolent offense with which they have been charged is so unbe-

lievably severe. When prosecutors offer “only” three years in prison

when the penalties defendants could receive if they took their case to

trial would be five, ten, or twenty years—or life imprisonment—only

extremely courageous (or foolish) defendants turn the offer down.

The pressure to plead guilty to crimes has increased exponential-

ly since the advent of the War on Drugs. In 1986, Congress passed

The Anti-Drug Abuse Act, which established extremely long manda-

tory minimum prison terms for low-level drug dealing and posses-

sion of crack cocaine. The typical mandatory sentence for a first-time

drug offense in federal court is five or ten years. By contrast, in other

developed countries around the world, a first- time drug offense would

merit no more than six months in jail, if jail time is imposed at all.70

State legislatures were eager to jump on the “get tough” bandwagon,

passing harsh drug laws, as well as “three strikes” laws mandating a

life sentence for those convicted of any third offense. These mandatory

minimum statutory schemes have transferred an enormous amount of

power from judges to prosecutors. Now, simply by charging someone

with an offense carrying a mandatory sentence of ten to fifteen years

or life, prosecutors are able to force people to plead guilty rather than

risk a decade or more in prison. Prosecutors admit that they routinely

charge people with crimes for which they technically have probable

cause but which they seriously doubt they could ever win in court.71

They “load up” defendants with charges that carry extremely harsh

sentences in order to force them to plead guilty to lesser offenses

and—here’s the kicker—to obtain testimony for a related case. Harsh

sentencing laws encourage people to snitch.

The number of snitches in drug cases has soared in recent years,

partly because the government has tempted people to “cooperate”

with law enforcement by offering cash, putting them “on payroll,”

and promising cuts of seized drug assets, but also because ratting out

T H E L O C K D O W N 1 1 1

co- defendants, friends, family, or acquaintances is often the only way

to avoid a lengthy mandatory minimum sentence.72 In fact, under the

federal sentencing guidelines, providing “substantial assistance” is

often the only way defendants can hope to obtain a sentence below the

mandatory minimum. The “assistance” provided by snitches is noto-

riously unreliable, as studies have documented countless informants

who have fabricated stories about drug-related and other criminal

activity in exchange for money or leniency in their pending criminal

cases.73 While such conduct is deplorable, it is not difficult to under-

stand. Who among us would not be tempted to lie if it was the only way

to avoid a forty-year sentence for a minor drug crime?

The pressure to plea-bargain and thereby “convict yourself ” in

exchange for some kind of leniency is not an accidental by-product of

the mandatory-sentencing regime. The U.S. Sentencing Commission

itself has noted that “the value of a mandatory minimum sentence lies

not in its imposition, but in its value as a bargaining chip to be given

away in return for the resource-saving plea from the defendant to a more

leniently sanctioned charge.” Describing severe mandatory sentences

as a bargaining chip is a major understatement, given its potential for

extracting guilty pleas from people who are innocent of any crime.

It is impossible to know for certain how many innocent drug defen-

dants convict themselves every year by accepting a plea bargain out of

fear of mandatory sentences, or how many are convicted due to lying

informants and paid witnesses, but reliable estimates of the number

of innocent people currently in prison tend to range from 2 percent

to 5 percent.74 While those numbers may sound small (and probably

are underestimates), they translate into thousands of innocent people

who are locked up, some of whom will die in prison. In fact, if only

1 percent of those locked in America’s prisons are actually innocent of

the crimes for which they have been convicted, that would mean tens

of thousands of innocent people are currently languishing behind bars

in the United States.

1 1 2 T H E N E W J I M   C R O W

The real point here, however, is not that innocent people are locked

up. That has been true since penitentiaries first opened in America.

The critical point is that thousands of people are swept into the crimi-

nal justice system every year pursuant to the drug war without much

regard for their guilt or innocence. The police are allowed by the

courts to conduct fishing expeditions for drugs on streets and free-

ways based on nothing more than a hunch. Homes may be searched for

drugs based on a tip from an unreliable, confidential informant who is

trading the information for money or to escape prison time. And once

swept inside the system, people are often denied attorneys or mean-

ingful representation and pressured into plea bargains by the threat of

unbelievably harsh sentences—sentences for minor drug crimes that

are higher than many countries impose on convicted murderers. This

is the way the roundup works, and it works this way in virtually every

major city in the United States.

Time Served

Once convicted of felony drug charges, one’s chances of being released

from the system in short order are slim, at best. The elimination of

judicial discretion through mandatory sentencing laws has forced

judges to impose sentences for drug crimes that are often longer

than those imposed for violent crimes in many countries around

the world. When judges have discretion, they may consider a defen-

dant’s background and impose a lighter penalty if the defendant’s

personal circumstances—extreme poverty or experience of abuse,

for example—warrant it. This flexibility—which is important in all

criminal cases—is especially important in drug cases, as studies have

indicated that many drug defendants are using or selling to support an

addiction.75 Referring a defendant to treatment, rather than sending

him or her to prison, may well be the most prudent choice—saving

government resources and potentially saving the defendant from a

T H E L O C K D O W N 1 13

lifetime of addiction. Likewise, imposing a short prison sentence (or

none at all) may increase the chances that the defendant will expe-

rience successful re- entry. A lengthy prison term may increase the

odds that re-entry will be extremely difficult, leading to relapse, and

re- imprisonment. Mandatory drug sentencing laws strip judges of

their traditional role of considering all relevant circumstances in an

effort to do justice in the individual case.

Nevertheless, harsh mandatory minimum sentences for people

convicted of drug offenses have been consistently upheld by the U.S.

Supreme Court. In 1982, the Supreme Court upheld forty years of

imprisonment for possession and an attempt to sell 9 ounces of mari-

juana.76 Several years later, in Harmelin v. Michigan, the Court upheld

a sentence of life imprisonment for a defendant with no prior convic-

tions who attempted to sell 672 grams (approximately 23 ounces) of

crack cocaine.77 The Court found the sentences imposed in those cases

“reasonably proportionate” to the offenses committed—and not “cruel

and unusual” in violation of the Eighth Amendment. This ruling was

remarkable given that, prior to the Drug Reform Act of 1986, the lon-

gest sentence Congress had ever imposed for possession of any drug in

any amount was one year. A life sentence for a first-time drug offense

is unheard of in the rest of the developed world. Even for high-end

drug crimes, most countries impose sentences that are measured in

months, rather than years. For example, a conviction for selling a kilo-

gram of heroin yields a mandatory ten-year sentence in U.S. federal

court, compared with six months in prison in England.78 Remarkably,

in the United States, a life sentence is deemed perfectly appropriate for

someone whose only crime is a first-time drug offense.

The most famous Supreme Court decision upholding mandatory

minimum sentences is Lockyer v. Andrade.79 In that case, the Court

rejected constitutional challenges to sentences of twenty-five years

without parole for a man who stole three golf clubs from a pro shop,

and fifty years without parole for another man for stealing children’s

1 1 4 T H E N E W J I M   C R O W

videotapes from a Kmart store. These sentences were imposed pur-

suant to California’s controversial three strikes law, which mandates

a sentence of twenty-five years to life for recidivists convicted of a

third felony, no matter how minor. Writing for the Court’s majority,

Justice Sandra Day O’Connor acknowledged that the sentences were

severe but concluded that they are not grossly disproportionate to the

offense, and therefore do not violate the Eighth Amendment’s ban on

“cruel and unusual” punishments. In dissent, Justice David H. Souter

retorted, “If Andrade’s sentence [for stealing videotapes] is not grossly

disproportionate, the principle has no meaning.” Similarly, counsel for

one of the defendants, University of Southern California law profes-

sor Erwin Chemerinsky, noted that the Court’s reasoning makes it

extremely difficult if not impossible to challenge any recidivist sen-

tencing law: “If these sentences aren’t cruel and unusual punishment,

what would be?”80

Mandatory sentencing laws are frequently justified as necessary to

keep “violent criminals” off the streets, yet those penalties are imposed

most often against people who are guilty of nonviolent crimes and

drug offenses. In fact, under the three strikes regime in California, a

“repeat offender” could be someone who had only a single prior case

decades ago, and one arrest can result in multiple strikes. For example,

imagine a young man, eighteen years old, who is arrested as part of an

undercover operation and charged with two counts of dealing cocaine

to minors. He had been selling to friends to earn extra money for shoes

and basic things his mother could not afford. The prosecutor offers

him probation if he agrees to plead guilty to both charges and to snitch

on a bigger dealer. Terrified of doing prison time, he takes the deal.

Several years later, he finds his punishment will never end. Branded

a felon, he is struggling to survive and to support his children. One

night he burglarizes a corner store and steals food, toothpaste, Pepsi,

and diapers for his baby boy. He is arrested almost immediately a few

blocks away. That’s it for him. He now has three strikes. His burglary

T H E L O C K D O W N 1 15

can be charged as a third strike because of his two prior felony convic-

tions. He is eligible for life imprisonment. His children will be raised

without a father.

Or imagine a woman struggling with drug addiction, unable to

obtain treatment, and desperate for money so she can feed her habit.

Together with her boyfriend, she burglarizes two homes, stealing tele-

visions they hope to sell. After her arrest, she takes a plea deal, spends

several years in prison, and is released with two strikes on her record,

one for each burglary. Two decades later, she relapses— after being

clean for fifteen years—and is arrested for selling crack. She made the

sale to support her relapse. That’s it for her. She can be locked up for

the rest of her life.

These examples may sound extreme, but real life can be worse. Sen-

tences for each charge can run consecutively, so a defendant can easily

face a sentence of fifty, seventy-five, or one hundred years to life aris-

ing from a single case. It is not uncommon for people to receive prison

sentences of more than fifty years for minor crimes. In fact, fifty years

to life was the actual sentence given to Leandro Andrade for stealing

videotapes, a sentence upheld by the Supreme Court.

The clear majority of those subject to harsh mandatory minimum

sentences in the federal system are people convicted of drug offenses.

Most are low- level, minor drug dealers—not “drug kingpins.” The sto-

ries are legion. Marcus Boyd was arrested after selling 3.9 grams of

crack cocaine to a confidential informant working with a regional drug

task force. At the time of his arrest, Marcus was twenty-four years old

and had been addicted to drugs for six years, beginning shortly after

his mother’s death and escalating throughout his early twenties. He

met the informant through a close family friend, someone he trusted.

At sentencing, the judge based the drug quantity calculation on testi-

mony from the informant and another witness, who both claimed they

bought crack from Marcus on other occasions. As a result, Marcus was

held accountable for 37.4 grams (the equivalent of 1.3 ounces) based

1 1 6 T H E N E W J I M   C R O W

on the statements made by the informant and the other witness. He

was sentenced to more than fourteen years in prison. His two children

were six and seven years old at the time of his sentencing. They will be

adults when he is released.81

Weldon Angelos is another casualty of the drug war. He will spend

the rest of his life in prison for three marijuana sales. Angelos, a

twenty-four-year-old record producer, possessed a weapon—which he

did not use or threaten to use—at the time of the sales. Under federal

sentencing guidelines, however, the sentencing judge was obligated to

impose a fifty-five-year mandatory minimum sentence. Upon doing so,

the judge noted his reluctance to send the young man away for life for

three marijuana sales. He said from the bench, “The Court believes

that to sentence Mr. Angelos to prison for the rest of his life is unjust,

cruel, and even irrational.”82

Some federal judges, including conservative judges, have quit in

protest of federal drug laws and sentencing guidelines. Face-to-face

with those whose lives hang in the balance, they are far closer to the

human tragedy occasioned by the drug war than the legislators who

write the laws from afar. Judge Lawrence Irving, a Reagan appointee,

noted upon his retirement: “If I remain on the bench, I have no choice

but to follow the law. I just can’t, in good conscience, continue to do

this.”83 Other judges, such as Judge Jack Weinstein, publicly refused

to take any more drug cases, describing “a sense of depression about

much of the cruelty I have been a party to in connection with the ‘war

on drugs.’”84 Another Reagan appointee, Judge Stanley Marshall, told a

reporter, “I’ve always been considered a fairly harsh sentencer, but it’s

killing me that I’m sending so many low-level offenders away for all

this time.”85 He made the statement after imposing a five-year sentence

on a mother in Washington, DC, who was convicted of “possession” of

crack found by police in a locked box that her son had hidden in her

attic. In California, reporters described a similar event:

T H E L O C K D O W N 1 1 7

U.S. District Judge William W. Schwarzer, a Republican

appointee, is not known as a light sentencer. Thus it was

that everyone in his San Francisco courtroom watched in

stunned silence as Schwarzer, known for his stoic demean-

or, choked with tears as he anguished over sentencing

Richard Anderson, a first offender Oakland longshoreman,

to ten years in prison without parole for what appeared to

be a minor mistake in judgment in having given a ride to a

drug dealer for a meeting with an undercover agent.86

Even Supreme Court Justice Anthony Kennedy has condemned the

harsh mandatory minimum sentences imposed on people convicted of

drug offenses. He told attorneys gathered for the American Bar Associ-

ation’s 2003 annual conference: “Our [prison] resources are misspent,

our punishments too severe, our sentences too loaded.” He then added,

“I can accept neither the necessity nor the wisdom of federal manda-

tory minimum sentences. In all too many cases, mandatory minimum

sentences are unjust.”87

The Prison Label

Most people imagine that the explosion in the U.S. prison population

during the past twenty-five years reflects changes in crime rates. Few

would guess that our prison population leaped from approximately

350,000 to 2.3 million in such a short period of time due to changes in

laws and policies, not changes in crime rates. Yet it has been changes

in our laws—particularly the dramatic increases in the length of pris-

on sentences—that has been responsible for the growth of our pris-

on system, not increases in crime. One study suggests that the entire

increase in the prison population from 1980 to 2001 can be explained

by sentencing policy changes.88

Because harsh sentencing is a major cause of the prison explosion,

1 1 8 T H E N E W J I M   C R O W

one might reasonably assume that substantially reducing the length

of prison sentences would effectively dismantle this new system of

control. That view, however, is mistaken. This system depends on the

prison label, not prison time.

Once a person is labeled a felon, he or she is ushered into a parallel

universe in which discrimination, stigma, and exclusion are perfectly

legal, and privileges of citizenship such as voting and jury service are

off-limits. It does not matter whether you have actually spent time

in prison; your second-class citizenship begins the moment you are

branded a felon. Most people branded felons, in fact, are not sentenced

to prison. As of 2008, there were approximately 2.3 million people in

prisons and jails and a staggering 5.1 million people under “commu-

nity correctional supervision”—i.e., on probation or parole.89 Merely

reducing prison terms does not have a major impact on the majority of

people in the system. It is the badge of inferiority—the felony record—

that relegates people for their entire lives to second-class status. As

described in chapter 4, for people convicted of drug crimes, there is

little hope of escape. Barred from public housing by law, discriminat-

ed against by private landlords, ineligible for food stamps, forced to

“check the box” indicating a felony conviction on employment appli-

cations for nearly every job, and denied licenses for a wide range of

professions, people whose only crime is drug addiction or possession

of a small amount of drugs for recreational use find themselves locked

out of the mainstream society and economy—permanently.

No wonder, then, that most people labeled felons are swept back

into prisons not long after their release. According to a Bureau of Jus-

tice Statistics study, about 30 percent of those released from prison

in its sample were rearrested within six months of release.90 Within

three years, nearly 68 percent were rearrested at least once for a new

offense.91 Only a small minority are rearrested for violent crimes; the

vast majority are rearrested for property offenses, drug offenses, and

offenses against the public order.92

T H E L O C K D O W N 1 19

For those released on probation or parole, the risks are especially

high. They are subject to regular surveillance and monitoring by the

police and may be stopped and searched (with or without their con-

sent) for any reason or no reason at all. As a result, they are far more

likely to be arrested (again) than those whose behavior is not subject

to constant scrutiny by law enforcement. Probationers and parolees

are at increased risk of arrest because their lives are governed by addi-

tional rules that do not apply to everyone else. Myriad restrictions

on their travel and behavior (such as a prohibition on “associating

with other felons”), as well as various requirements of probation and

parole (such as paying fines and meeting with probation officers), cre-

ate opportunities for arrest. Violation of these special rules can land

someone right back in prison. In fact, that is what happens a good deal

of the time.

The increase in prison admissions due to parole and probation viola-

tions is astounding. With respect to parole, in 1980, only 1 percent of

all prison admissions were parole violators. Twenty years later, more

than one-third (35 percent) of prison admissions resulted from parole

violations.93 To put the matter more starkly: About as many people were

returned to prison for parole violations in 2000 as were admitted to prison

in 1980 for all reasons.94 Of all parole violators returned to prison in

2000, only one-third were returned for a new conviction; two-thirds

were returned for a technical violation such as missing appointments

with a parole officer, failing to maintain employment, or failing a drug

test.95 In this system of control, failing to cope well with one’s exile sta-

tus is treated like a crime. If you fail, after being released from prison

with a criminal record—your personal badge of inferiority—to remain

drug free, or if you fail to get a job against all the odds, or if you get

depressed and miss an appointment with your parole officer (or if you

cannot afford the bus fare to take you there), you can be sent right

back to prison—where society apparently thinks millions of Ameri-

cans belong.

1 2 0 T H E N E W J I M   C R O W

This disturbing phenomenon of people cycling in and out of pris-

on, trapped by their second-class status, has been described by Loïc

Wacquant as a “closed circuit of perpetual marginality.”96 Hundreds

of thousands of people are released from prison every year, only to

find themselves locked out of the mainstream society and economy.

Most ultimately return to prison, sometimes for the rest of their lives.

Others are released again, only to find themselves in precisely the cir-

cumstances they occupied before, unable to cope with the stigma of

the prison label and their permanent pariah status.

Reducing the amount of time people spend behind bars—by elimi-

nating harsh mandatory minimums—will alleviate some of the unnec-

essary suffering caused by this system, but it will not disturb the closed

circuit. Those labeled felons will continue to cycle in and out of prison,

subject to perpetual surveillance by the police, and unable to integrate

into the mainstream society and economy. Unless the number of peo-

ple who are labeled felons is dramatically reduced, and unless the laws

and policies that keep people with criminal records marginalized from

the mainstream society and economy are eliminated, the system will

continue to create and maintain an enormous undercaste.

3 T he C olor of Ju s t ic e

Imagine you are Erma Faye Stewart, a thirty-year-old, single Afri-can American mother of two who was arrested as part of a drug sweep in Hearne, Texas.1 All but one of the people arrested were Afri-

can American. You are innocent. After a week in jail, you have no one

to care for your two small children and are eager to get home. Your

court-appointed attorney urges you to plead guilty to a drug distribu-

tion charge, saying the prosecutor has offered probation. You refuse,

steadfastly proclaiming your innocence. Finally, after almost a month

in jail, you decide to plead guilty so you can return home to your chil-

dren. Unwilling to risk a trial and years of imprisonment, you are sen-

tenced to ten years’ probation and ordered to pay $1,000 in fines, as

well as court and probation costs. You are also now branded a drug

felon. You are no longer eligible for food stamps; you may be discrimi-

nated against in employment; you cannot vote for at least twelve years;

and you are about to be evicted from public housing. Once homeless,

your children will be taken from you and put in foster care.

A judge eventually dismisses all cases against the defendants who

did not plead guilty. At trial, the judge finds that the entire sweep was

based on the testimony of a single informant who lied to the pros-

ecution. You, however, are still branded a drug felon, homeless, and

desperate to regain custody of your children. Now place yourself in

the shoes of Clifford Runoalds, another African American victim of

1 2 2 T H E N E W J I M   C R O W

the Hearne drug bust.2 You returned home to Bryan, Texas, to attend

the funeral of your eighteen-month-old daughter. Before the funeral

services begin, the police show up and handcuff you. You beg the offi-

cers to let you take one last look at your daughter before she is buried.

The police refuse. You are told by prosecutors that you are needed to

testify against one of the defendants in a recent drug bust. You deny

witnessing any drug transaction; you don’t know what they are talk-

ing about. Because of your refusal to cooperate, you are indicted on

felony charges. After a month of being held in jail, the charges against

you are dropped. You are technically free, but as a result of your arrest

and period of incarceration, you lose your job, your apartment, your

furniture, and your car. Not to mention the chance to say good-bye to

your baby girl.

This is the War on Drugs. The brutal stories described above are

not isolated incidents, nor are the racial identities of Erma Faye

Stewart and Clifford Runoalds random or accidental. In every state

across our nation, African Americans—particularly in the poorest

neighborhoods—are subjected to tactics and practices that would

result in public outrage and scandal if committed in middle-class

white neighborhoods. In the drug war, the enemy is racially defined.

The law enforcement methods described in chapter 2 have been

employed almost exclusively in poor communities of color, resulting

in jaw-dropping numbers of African Americans and Latinos filling our

nation’s prisons and jails every year. We are told by drug warriors that

the enemy in this war is a thing—drugs—not a group of people, but

the facts prove otherwise.

Human Rights Watch reported in 2000 that, in seven states, African

Americans constitute 80 to 90 percent of all those sent to prison on

drug charges.3 In at least fifteen states, blacks are admitted to pris-

on on drug charges at a rate from twenty to fifty-seven times greater

than that of white men.4 In fact, nationwide, the rate of incarceration

for African Americans convicted of drug offenses dwarfs the rate of

T H E C O L O R O F J U S T I C E 1 2 3

whites. When the War on Drugs gained full steam in the mid- 1980s,

prison admissions for African Americans skyrocketed, nearly quadru-

pling in three years, and then increasing steadily until it reached in

2000 a level more than twenty-six times the level in 1983.5 The number

of 2000 drug admissions for Latinos was twenty-two times the number

of 1983 admissions.6 Whites have been admitted to prison for drug

offenses at increased rates as well—the number of whites admitted for

drug offenses in 2000 was eight times the number admitted in 1983—

but their relative numbers are small compared to blacks’ and Latinos’.7

Although the majority of illegal drug users and dealers nationwide are

white, three-fourths of all people imprisoned for drug offenses have

been black or Latino.8 In recent years, rates of black imprisonment

for drug offenses have dipped somewhat—declining approximately

25 percent from their zenith in the mid-1990s—but it remains the case

that African Americans are incarcerated at grossly disproportionate

rates throughout the United States.9

There is, of course, an official explanation for all of this: crime

rates. This explanation has tremendous appeal—before you know the

facts—for it is consistent with, and reinforces, dominant racial nar-

ratives about crime and criminality dating back to slavery. The truth,

however, is that rates and patterns of drug crime do not explain the

glaring racial disparities in our criminal justice system. People of all

races use and sell illegal drugs at remarkably similar rates.10 If there

are significant differences in the surveys to be found, they frequently

suggest that whites, particularly white youth, are more likely to engage

in illegal drug dealing than people of color.11 One study, for example,

published in 2000 by the National Institute on Drug Abuse report-

ed that white students use cocaine at seven times the rate of black

students, use crack cocaine at eight times the rate of black students,

and use heroin at seven times the rate of black students.12 That same

survey revealed that nearly identical percentages of white and black

high school seniors use marijuana. The National Household Survey

1 2 4 T H E N E W J I M   C R O W

on Drug Abuse reported in 2000 that white youth aged 12–17 are

more than a third more likely to have sold illegal drugs than African

American youth.13 Thus the very same year Human Rights Watch was

reporting that African Americans were being arrested and imprisoned

at unprecedented rates, government data revealed that blacks were no

more likely to be guilty of drug crimes than whites and that white

youth were actually the most likely of any racial or ethnic group to be

guilty of illegal drug possession and sales. Any notion that drug use

among blacks is more severe or dangerous is belied by the data; white

youth have about three times the number of drug-related emergency

room visits as their African American counterparts.14

The notion that whites comprise the vast majority of drug users

and dealers—and may well be more likely than other racial groups to

commit drug crimes—may seem implausible to some, given the media

imagery we are fed on a daily basis and the racial composition of our

prisons and jails. Upon reflection, however, the prevalence of white

drug crime—including drug dealing—should not be surprising. After

all, where do whites get their illegal drugs? Do they all drive to the

ghetto to purchase them from somebody standing on a street corner?

No. Studies consistently indicate that drug markets, like American

society generally, reflect our nation’s racial and socioeconomic bound-

aries. Whites tend to sell to whites; blacks to blacks.15 University stu-

dents tend to sell to each other.16 Rural whites, for their part, don’t

make a special trip to the ’hood to purchase marijuana. They buy it

from somebody down the road.17 White high school students typically

buy drugs from white classmates, friends, or older relatives. Even Bar-

ry McCaffrey, former director of the White House Office of National

Drug Control Policy, once remarked, if your child bought drugs, “it

was from a student of their own race generally.”18 The notion that most

illegal drug use and sales happens in the ghetto is pure fiction. Drug

trafficking occurs there, but it occurs everywhere else in America as

well. Nevertheless, black men have been admitted to state prison on

T H E C O L O R O F J U S T I C E 1 2 5

drug charges at a rate that is more than thirteen times higher than that

of white men.19 The racial bias inherent in the drug war is a major rea-

son that 1 in every 14 black men was behind bars in 2006, compared

with 1 in 106 white men.20 For young black men, the statistics are even

worse. One in 9 black men between the ages of twenty and thirty-five

was behind bars in 2006, and far more were under some form of penal

control—such as probation or parole.21 These gross racial disparities

simply cannot be explained by rates of illegal drug activity among

African Americans.

What, then, does explain the extraordinary racial disparities in our

criminal justice system? Old-fashioned racism seems out of the ques-

tion. Politicians and law enforcement officials today rarely endorse

racially biased practices, and most of them fiercely condemn racial

discrimination of any kind. When accused of racial bias, police and

prosecutors—like most Americans—express horror and outrage.

Forms of race discrimination that were open and notorious for cen-

turies were transformed in the 1960s and 1970s into something

un-American—an affront to our newly conceived ethic of color-

blindness. By the early 1980s, survey data indicated that 90 percent

of whites thought black and white children should attend the same

schools, 71 percent disagreed with the idea that whites have a right

to keep blacks out of their neighborhoods, 80 percent indicated they

would support a black candidate for president, and 66 percent opposed

laws prohibiting intermarriage.22 Although far fewer supported spe-

cific policies designed to achieve racial equality or integration (such

as busing), the mere fact that large majorities of whites were, by the

early 1980s, supporting the antidiscrimination principle reflected a

profound shift in racial attitudes. The margin of support for colorblind

norms has only increased since then.

This dramatically changed racial climate has led defenders of mass

incarceration to insist that our criminal justice system, whatever its

past sins, is now largely fair and nondiscriminatory. They point to

1 2 6 T H E N E W J I M   C R O W

violent crime rates in the African American community as a justifi-

cation for the staggering number of black men who find themselves

behind bars. Black men, they say, have much higher rates of violent

crime; that’s why so many of them are locked up.

Typically, this is where the discussion ends.

The problem with this abbreviated analysis is that violent crime is

not responsible for mass incarceration. As numerous researchers have

shown, violent crime rates have fluctuated over the years and bear lit-

tle relationship to incarceration rates—which have soared during the

past three decades regardless of whether violent crime was going up

or down.23 Today violent crime rates are at historically low levels, yet

incarceration rates continue to climb.

Murder convictions tend to receive a tremendous amount of media

attention, which feeds the public’s sense that violent crime is rampant

and forever on the rise. But like violent crime in general, the mur-

der rate cannot explain the growth of the penal apparatus. Homicide

convictions account for a tiny fraction of the growth in the prison

population. In the federal system, for example, homicide convictions

account for 0.4 percent of the past decade’s growth in the federal pris-

on population, while drug convictions account for nearly 61 percent

of that expansion.24 In the state system, less than 3 percent of new

court commitments to state prison typically involve people convicted

of homicide.25

Roughly half of the people in state prisons are classified as violent

offenders, but that statistic can easily be misinterpreted. The term vio-

lent offender can apply to people who have been convicted of a wide

range of crimes—from fist fights to armed robbery to rape or murder.

The general public seems to imagine that our prisons are filled with

“rapists and murderers,” but they actually account for a small minority

of our nation’s prison population.

Equally important to understand is this: the fact that half of a state’s

prison population is comprised of people who are labeled violent

T H E C O L O R O F J U S T I C E 1 2 7

offenders does not mean that half of the people sentenced to prison

in that state have been convicted of violent crimes. This may seem

counterintuitive at first, but if you pause to consider how the system

actually operates this fact becomes obvious. People who are convicted

of violent crimes tend to get longer prison sentences than those who

commit nonviolent offenses. As a result, people who are classified as

violent offenders comprise a much larger share of the prison popula-

tion than they would if they had earlier release dates.

A hypothetical scenario may help here. Picture in your mind a prison

hallway lined with cells (ten on each side) that are occupied by people

for varying lengths of time. Imagine that each cell holds two people.

One side of the hallway is reserved for people who have been convicted

of drug or property crimes and who have relatively short sentences

of five years or fewer. The other side of the hallway is reserved for

people who have been convicted of violent crimes and sentenced to

ten years or more (or life imprisonment). During a single decade, more

than a hundred people could cycle in and out of the cages reserved for

people convicted of nonviolent crimes, while the same twenty people

who are locked up for violent crimes on the other side of the hallway

would remain in place. At any given moment, if you were to snap a

picture of that hallway, half the people living in cages would be clas-

sified as “violent offenders.” But this picture would wildly distort your

understanding of the population that had been sentenced to prison

during the past ten years. Although prison hallways are not segregated

in this fashion, some version of this dynamic occurs in prisons across

America, resulting in prisons that are half-filled with people convicted

of violent crimes, even though most people sentenced to prisons and

jails were convicted of lesser offenses.

The most important fact to keep in mind, however, is that debates

about prison statistics typically ignore a key fact: most people who are

under state supervision and control are not in prison. Of the nearly 7.3

million people currently under correctional control, only 2.3 million

1 2 8 T H E N E W J I M   C R O W

are in prison or jail.26 The rest are on probation or parole. More than 4

million people are on probation in the United States (roughly twice the

number in prison) and only 19 percent of them were convicted of a vio-

lent offense. Similarly, the overwhelming majority of people on parole

were convicted of nonviolent crimes.27 The most common offense for

which people are placed on probation or parole is a drug offense.28

Even if the analysis is limited to felonies—thus excluding extremely

minor crimes and misdemeanors—nonviolent offenses predominate.

Only about a quarter of felony defendants in large urban counties were

charged with a violent offense in 2006.29

Nevertheless, politicians, law enforcement officials, and journalists

routinely create the false impression that most people branded crimi-

nals have been convicted of violent crimes. They point to the current

composition of state prisons as “proof” of this imagined fact, ignoring

that sentencing practices distort our understanding of who is placed

under state control and why. The lie that “most people sent to prison

are violent offenders” is dangerous because it perpetuates the false

notion that our system of mass incarceration is primarily concerned

with violence and that it is well designed to keep people safe. In fact,

the system is primarily concerned with the perpetual control and mar-

ginalization of the dispossessed.

None of this is to suggest that we ought not be concerned about vio-

lent crime. Nor is it to say that we should not care about people serv-

ing time for violent offenses. We should care deeply about all people

impacted, including people who live in fear of violence, people who

are survivors, and those who commit violent crimes. Often these cat-

egories overlap, since nearly everyone who engages in violence first

survives it. If we truly want to end violence in our communities, we

must come to understand, as discussed in the final chapter, the ways

in which mass incarceration increases—not decreases—violence and

multiplies its harms. But at the same time, we ought not be misled by

those who insist that violent crime has driven the rise of this unprec-

edented system of racial and social control. The uncomfortable reality

T H E C O L O R O F J U S T I C E 1 2 9

is that a literal war has been waged on our most vulnerable commu-

nities, and convictions for relatively minor, nonviolent offenses have

propelled mass incarceration. In many states, including Colorado and

Maryland, people convicted of drug offenses now constitute the sin-

gle largest category of people admitted to prison.30 People of color are

convicted of drug offenses at rates out of all proportion to their drug

crimes, a fact that has greatly contributed to the emergence of a vast

new racial undercaste—a system of mass incarceration that governs

the lives of millions of people inside and outside of prison walls.

These facts may still leave some readers unsatisfied. The idea that

the criminal justice system discriminates in such a terrific fashion

when few people openly express or endorse racial discrimination may

seem far-fetched, if not absurd. How could the War on Drugs operate

in a discriminatory manner, on such a large scale, when hardly anyone

advocates or engages in explicit race discrimination? That question is

the subject of this chapter. As we shall see, despite the colorblind rhet-

oric and fanfare of recent years, the design of the drug war effectively

guarantees that those who are swept into the nation’s new undercaste

are largely black and brown.

This sort of claim invites skepticism. Nonracial explanations and

excuses for the systematic mass incarceration of people of color are

plentiful. It is the genius of the new system of control that it can always

be defended on nonracial grounds, given the rarity of a noose or a

racial slur in connection with any particular criminal case. Moreover,

because blacks and whites are almost never similarly situated (given

extreme racial segregation in housing and disparate life experiences),

trying to “control for race” in an effort to evaluate whether the mass

incarceration of people of color is really about race or something else—

anything else—is difficult. But it is not impossible.

A bit of common sense is overdue in public discussions about racial

bias in the criminal justice system. The great debate over whether

black men have been targeted by the criminal justice system or unfair-

ly treated in the War on Drugs often overlooks the obvious. What is

13 0 T H E N E W J I M   C R O W

painfully obvious when one steps back from individual cases and spe-

cific policies is that the system of mass incarceration operates with

stunning efficiency to sweep people of color off the streets, lock them

in cages, and then release them into an inferior second-class status.

Nowhere is this more true than in the War on Drugs.

The central question, then, is how exactly does a formally color-

blind criminal justice system achieve such racially discriminatory

results? Rather easily, it turns out. The process occurs in two stages.

The first step is to grant law enforcement officials extraordinary dis-

cretion regarding whom to stop, search, arrest, and charge for drug

offenses, thus ensuring that conscious and unconscious racial beliefs

and stereotypes will be given free rein. Unbridled discretion inevita-

bly creates huge racial disparities. Then, the damning step: close the

courthouse doors to all claims by defendants and private litigants that

the criminal justice system operates in racially discriminatory fashion.

Demand that anyone who wants to challenge racial bias in the system

offer, in advance, clear proof that the racial disparities are the prod-

uct of intentional racial discrimination—i.e., the work of a bigot. This

evidence will almost never be available in the era of colorblindness,

because everyone knows—but does not say—that the enemy in the

War on Drugs can be identified by race. This simple design has helped

to produce one of the most extraordinary systems of racialized social

control the world has ever seen.

Picking and Choosing—The Role of Discretion

Chapter 2 described the first step in some detail, including the legal

rules that grant police the discretion and authority to stop, interro-

gate, and search anyone, anywhere, provided they get “consent” from

the targeted individual. It also examined the legal framework that

affords prosecutors extraordinary discretion to charge or not charge,

plea bargain or not, and load up defendants with charges carrying the

threat of harsh mandatory sentences in order to force guilty pleas, even

T H E C O L O R O F J U S T I C E 13 1

in cases in which the defendants may well be innocent. These rules

have made it possible for law enforcement agencies to boost dramati-

cally their rates of drug arrests and convictions, even in communities

where drug crime is stable or declining.31 But that is not all. These

rules have also guaranteed racially discriminatory results.

The reason is this: drug-law enforcement is unlike most other types

of law enforcement. When a violent crime or a robbery occurs, the

criminal activity usually causes harm or violates someone’s rights.

But with drug crime, neither the purchaser of the drugs nor the seller

has any incentive to contact law enforcement. It is consensual activity.

Equally important, it is popular. The clear majority of Americans of all

races have violated drug laws in their lifetime. In fact, in any given year,

more than one in ten Americans violate drug laws. But due to resource

constraints (and the politics of the drug war), only a small fraction are

arrested, convicted, and incarcerated. In 2002, for example, there were

19.5 million illicit drug users, compared to 1.5 million drug arrests

and 175,000 people admitted to prison for a drug offense.32

The ubiquity of illegal drug activity, combined with its consensual

nature, requires a far more proactive approach by law enforcement

than what is required to address ordinary street crime. It is impos-

sible for law enforcement to identify and arrest everyone who commits

a drug crime. Strategic choices must be made about whom to target

and what tactics to employ. Police and prosecutors did not declare the

War on Drugs—and some initially opposed it—but once the finan-

cial incentives for waging the war became too attractive to ignore, law

enforcement agencies had to ask themselves, if we’re going to wage

this war, where should it be fought and who should be taken prisoner?

That question was not difficult to answer, given the political and

social context. As discussed in chapter 1, the Reagan administra-

tion launched a media campaign a few years after the drug war was

announced in an effort to publicize horror stories involving black

crack users and crack dealers in ghetto communities. Although crack

cocaine had not yet hit the streets when the War on Drugs was declared

13 2 T H E N E W J I M   C R O W

in 1982, its appearance a few years later created the perfect opportuni-

ty for the Reagan administration to build support for its new war. Drug

use, once considered a private, public-health matter, was reframed

through political rhetoric and media imagery as a grave threat to the

national order.

Jimmie Reeves and Richard Campbell show in their research how

the media imagery surrounding cocaine changed as the practice of

smoking cocaine came to be associated with poor blacks.33 Early in

the 1980s, the typical cocaine-related story focused on white recre-

ational users who snorted the drug in its powder form. These stories

generally relied on news sources associated with the drug treatment

industry, such as rehabilitation clinics, and emphasized the possibility

of recovery. By 1985, however, as the War on Drugs moved into high

gear, this frame was supplanted by a new “siege paradigm,” in which

transgressors were poor, nonwhite users and dealers of crack cocaine.

Law enforcement officials assumed the role of drug “experts,” empha-

sizing the need for law and order responses—a crackdown on those

associated with the drug. These findings are consistent with numerous

other studies, including a study of network television news from 1990

and 1991, which found that a predictable “us against them” frame was

used in the news stories, with “us” being white, suburban America,

and “them” being black Americans and a few corrupted whites.34

The media bonanza inspired by the administration’s campaign solid-

ified in the public imagination the image of the black drug criminal.

Although explicitly racial political appeals remained rare, the calls for

“war” at a time when the media was saturated with images of black

drug crime left little doubt about who the enemy was in the War on

Drugs and exactly what he looked like. Jerome Miller, the former exec-

utive director of the National Center for Institutions and Alternatives,

described the dynamic this way: “There are certain code words that

allow you never to have to say ‘race,’ but everybody knows that’s what

you mean and ‘crime’ is one of those. . . . So when we talk about locking

T H E C O L O R O F J U S T I C E 13 3

up more and more people, what we’re really talking about is locking

up more and more black men.”35 Another commentator noted, “It is

unnecessary to speak directly of race [today] because speaking about

crime is talking about race.”36 Indeed, not long after the drug war was

ramped up in the media and political discourse, almost no one imag-

ined that “drug criminals” could be anything other than black.

A survey was conducted in 1995 asking the following question:

“Would you close your eyes for a second, envision a drug user, and

describe that person to me?” The startling results were published

in the Journal of Alcohol and Drug Education. Ninety-five percent of

respondents pictured a black drug user, while only 5 percent imagined

other racial groups.37 These results contrast sharply with the reality of

drug crime in America. African Americans constituted only 15 percent

of current drug users in 1995, and they constitute roughly the same

percentage today. Whites constituted the vast majority of drug users

then (and now), but almost no one pictured a white person when asked

to imagine what a drug user looks like. The same group of respondents

also perceived the typical drug trafficker as black.

There is no reason to believe that the survey results would have been

any different if police officers or prosecutors—rather than the general

public—had been the respondents. Law enforcement officials, no less

than the rest of us, have been exposed to the racially charged political

rhetoric and media imagery associated with the drug war. In fact, for

nearly three decades, news stories regarding virtually all street crime

have disproportionately featured African Americans. One study sug-

gests that the standard crime news “script” is so prevalent and so thor-

oughly racialized that viewers imagine a black perpetrator even when

none exists. In that study, 60 percent of viewers who saw a story with

no image falsely recalled seeing one, and 70 percent of those viewers

believed the perpetrator to be African American.38

Decades of cognitive bias research demonstrates that both uncon-

scious and conscious biases lead to discriminatory actions, even when

13 4 T H E N E W J I M   C R O W

an individual does not want to discriminate.39 The quotation, commonly

attributed to Nietzsche, that “there is no immaculate perception,” per-

fectly captures how cognitive schemas—thought structures—influence

what we notice and how the things we notice get interpreted.40 Studies

have shown that racial schemas operate not only as part of conscious,

rational deliberations, but also automatically—without conscious

awareness or intent.41 One study, for example, involved a video game

that placed photographs of white and black individuals holding either

a gun or other object (such as a wallet, soda can, or cell phone) into

various photographic backgrounds. Participants were told to decide

as quickly as possible whether to shoot the target. Consistent with

earlier studies, participants were more likely to mistake a black target

as armed when he was not and mistake a white target as unarmed

when in fact he was armed.42 This pattern of discrimination reflected

automatic, unconscious thought processes, not careful deliberations.

Most striking, perhaps, is the overwhelming evidence that implic-

it bias measures are disassociated from explicit bias measures.43 In

other words, the fact that you may honestly believe that you are not

biased against African Americans, and that you may even have black

friends or relatives, does not mean that you are free from unconscious

bias. Implicit bias tests may still show that you hold negative attitudes

and stereotypes about blacks, even though you do not believe you

do and do not want to.44 In the study described above, for example,

black participants showed an amount of “shooter bias” similar to that

shown by whites.45 Not surprisingly, people who have the greatest

explicit bias (as measured by self-reported answers to survey ques-

tions) against a racial group tend also to have the greatest implicit bias

against them, and vice versa.46 Yet there is often a weak correlation

between degrees of explicit and implicit bias; many people who think

they are not biased prove when tested to have relatively high levels of

bias.47 Unfortunately, a fairly consistent finding is that punitiveness

and hostility almost always increase when people are primed—even

T H E C O L O R O F J U S T I C E 13 5

subliminally—with images or verbal cues associated with African

Americans. In fact, studies indicate that people become increas-

ingly harsh when a criminal suspect is darker and more “stereotypi-

cally black”; they are more lenient when the accused is lighter and

appears more stereotypically white. This is true of jurors as well as

law enforcement officers.48

Viewed as a whole, the relevant research by cognitive and social psy-

chologists to date suggests that racial bias in the drug war was inevi-

table, once a public consensus was constructed by political and media

elites that drug crime is black and brown. Once blackness and crime,

especially drug crime, became conflated in the public consciousness,

the “criminalblackman,” as termed by legal scholar Kathryn Russell,

would inevitably become the primary target of law enforcement.49

Some discrimination would be conscious and deliberate, as many

honestly and consciously would believe that black men deserve extra

scrutiny and harsher treatment. Much racial bias, though, would oper-

ate unconsciously and automatically—even among law enforcement

officials genuinely committed to equal treatment under the law.

Whether or not one believes racial discrimination in the drug war

was inevitable, it should have been glaringly obvious in the 1980s and

1990s that an extraordinarily high risk of racial bias in the administra-

tion of criminal justice was present, given the way in which all crime

had been framed in the media and in political discourse. Awareness

of this risk did not require intimate familiarity with cognitive bias

research. Anyone possessing a television set during this period would

likely have had some awareness of the extent to which black men had

been demonized in the War on Drugs.

The risk that African Americans would be unfairly targeted should

have been of special concern to the U.S. Supreme Court—the one

branch of government charged with the responsibility of protecting

“discrete and insular minorities” from the excesses of majoritarian

democracy and guaranteeing constitutional rights for groups deemed

13 6 T H E N E W J I M   C R O W

unpopular or subject to prejudice.50 Yet when the time came for the

Supreme Court to devise the legal rules that would govern the War on

Drugs, the Court adopted rules that would maximize—not minimize—

the amount of racial discrimination that would likely occur. It then

closed the courthouse doors to claims of racial bias.

Whren v. United States is a case in point. As noted in chapter 2, the

Court held in Whren that police officers are free to use minor traffic

violations as an excuse to stop motorists for drug investigations—even

when there is no evidence whatsoever that the motorist has engaged

in drug crime. So long as a minor traffic violation—such as failing to

use a turn signal, exceeding the speed limit by a mile or two, tracking

improperly between the lines, or stopping on a pedestrian walkway—

can be identified, police are free to stop motorists for the purpose of

engaging in a fishing expedition for drugs. Such police conduct, the

Court concluded, does not violate the Fourth Amendment’s ban on

“unreasonable searches and seizures.”51

For good reason, the petitioners in Whren argued that granting

police officers such broad discretion to investigate virtually anyone

for drug crimes created a high risk that police would exercise their

discretion in a racially discriminatory manner. With no requirement

that any evidence of drug activity actually be present before launching

a drug investigation, police officers’ snap judgments regarding who

seems like a drug criminal would likely be influenced by prevailing

racial stereotypes and bias. They urged the Court to prohibit the police

from stopping motorists for the purpose of drug investigations unless

the officers actually had reason to believe a motorist was committing,

or had committed, a drug crime. Failing to do so, they argued, was

unreasonable under the Fourth Amendment and would expose Afri-

can Americans to a high risk of discriminatory stops and searches.

Not only did the Court reject the petitioners’ central claim—

that using traffic stops as a pretext for drug investigations is

unconstitutional—it ruled that claims of racial bias could not be

T H E C O L O R O F J U S T I C E 13 7

brought under the Fourth Amendment. In other words, the Court

barred any victim of race discrimination by the police from even alleg-

ing a claim of racial bias under the Fourth Amendment. According

to the Court, whether or not police discriminate on the basis of race

when making traffic stops is irrelevant to a consideration of whether

their conduct is “reasonable” under the Fourth Amendment.

The Court did offer one caveat, however. It indicated that victims of

race discrimination could still state a claim under the equal protection

clause of the Fourteenth Amendment, which guarantees “equal treat-

ment under the laws.” This suggestion may have been reassuring to

those unfamiliar with the Court’s equal protection jurisprudence. But

for those who have actually tried to prove race discrimination under

the Fourteenth Amendment, the Court’s remark amounted to cruel

irony. As we shall see below, the Supreme Court has made it virtually

impossible to challenge racial bias in the criminal justice system under

the Fourteenth Amendment, and it has barred litigation of such claims

under federal civil rights laws as well.

Closing the Courthouse Doors—McCleskey v. Kemp

First, consider sentencing. In 1987, when media hysteria regarding

black drug crime was at fever pitch and the evening news was satu-

rated with images of black men shackled in courtrooms, the Supreme

Court ruled in McCleskey v. Kemp that racial bias in sentencing, even

if shown through credible statistical evidence, could not be challenged

under the Fourteenth Amendment in the absence of clear evidence of

conscious, discriminatory intent. On its face, the case appeared to be

a straightforward challenge to Georgia’s death penalty scheme. Once

the Court’s opinion was released, however, it became clear the case

was about much more than the death penalty. The real issue at hand

was whether—and to what extent—the Supreme Court would tolerate

racial bias in the criminal justice system as a whole. The Court’s answer

13 8 T H E N E W J I M   C R O W

was that racial bias would be tolerated—virtually to any degree—so

long as no one admitted it.

Warren McCleskey was a black man facing the death penalty for

killing a white police officer during an armed robbery in Georgia. Rep-

resented by the NAACP Legal Defense and Education Fund, McCles-

key challenged his death sentence on the grounds that Georgia’s

death penalty scheme was infected with racial bias and thus violated

the Fourteenth and Eighth Amendments. In support of his claim, he

offered an exhaustive study of more than two thousand murder cases

in Georgia. The study was known as the Baldus study—named after

Professor David Baldus, who was its lead author. The study found

that defendants charged with killing white victims received the death

penalty eleven times more often than defendants charged with kill-

ing black victims. Georgia prosecutors seemed largely to blame for the

disparity; they sought the death penalty in 70 percent of cases involv-

ing black defendants and white victims, but only 19 percent of cases

involving white defendants and black victims.52

Sensitive to the fact that numerous factors besides race can influ-

ence the decision making of prosecutors, judges, and juries, Baldus and

his colleagues subjected the raw data to highly sophisticated statistical

analysis to see if nonracial factors might explain the disparities. Yet

even after accounting for thirty-five nonracial variables, the research-

ers found that defendants charged with killing white victims were 4.3

times more likely to receive a death sentence than defendants charged

with killing blacks. Black defendants, like McCleskey, who killed white

victims had the highest chance of being sentenced to death in Georgia.53

The case was closely watched by criminal lawyers and civil rights

lawyers nationwide. The statistical evidence of discrimination that

Baldus had developed was the strongest ever presented to a court

regarding race and criminal sentencing. If McCleskey’s evidence was

not enough to prove discrimination in the absence of some kind of rac-

ist utterance, what would be?

T H E C O L O R O F J U S T I C E 13 9

By a one-vote margin, the Court rejected McCleskey’s claims under

the Fourteenth Amendment, insisting that unless McCleskey could

prove that the prosecutor in his particular case had sought the death

penalty because of race or that the jury had imposed it for racial rea-

sons, the statistical evidence of race discrimination in Georgia’s death

penalty system did not prove unequal treatment under the law. The

Court accepted the statistical evidence as valid but insisted that evi-

dence of conscious, racial bias in McCleskey’s individual case was

necessary to prove unlawful discrimination. In the absence of such

evidence, patterns of discrimination—even patterns as shocking as

demonstrated by the Baldus study—did not violate the Fourteenth

Amendment.

In erecting this high standard, the Court knew full well that the

standard could not be met absent an admission that a prosecutor

or judge acted because of racial bias. The majority opinion openly

acknowledged that long-standing rules generally bar litigants from

obtaining discovery from the prosecution regarding charging pat-

terns and motives, and that similar rules forbid introduction of evi-

dence of jury deliberations even when a juror has chosen to make

deliberations public.54 The very evidence that the Court demanded in

McCleskey—evidence of deliberate bias in his individual case—would

almost always be unavailable and/or inadmissible due to procedural

rules that shield jurors and prosecutors from scrutiny. This dilemma

was of little concern to the Court. It closed the courthouse doors to

claims of racial bias in sentencing.

There is good reason to believe that, despite appearances, the McCles-

key decision was not really about the death penalty at all; rather, the

Court’s opinion was driven by a desire to immunize the entire crimi-

nal justice system from claims of racial bias. The best evidence in sup-

port of this view can be found at the end of the majority opinion where

the Court states that discretion plays a necessary role in the imple-

mentation of the criminal justice system, and that discrimination is an

1 4 0 T H E N E W J I M   C R O W

inevitable by-product of discretion. Racial discrimination, the Court

seemed to suggest, was something that simply must be tolerated in the

criminal justice system, provided no one admits to racial bias.

The majority observed that significant racial disparities had been

found in other criminal settings beyond the death penalty, and that

McCleskey’s case implicitly calls into question the integrity of the

entire system. In the Court’s words: “Taken to its logical conclusion,

[Warren McCleskey’s claim] throws into serious question the prin-

ciples that underlie our criminal justice system. . . . [I]f we accepted

McCleskey’s claim that racial bias has impermissibly tainted the capi-

tal sentencing decision, we could soon be faced with similar claims

as to other types of penalty.”55 The Court openly worried that other

actors in the criminal justice system might also face scrutiny for alleg-

edly biased decision making if similar claims of racial bias in the sys-

tem were allowed to proceed. Driven by these concerns, the Court

rejected McCleskey’s claim that Georgia’s death penalty system vio-

lates the Eighth Amendment’s ban on arbitrary punishment, framing

the critical question as whether the Baldus study demonstrated a “con-

stitutionally unacceptable risk” of discrimination. Its answer was no.

The Court deemed the risk of racial bias in Georgia’s capital sentenc-

ing scheme “constitutionally acceptable.” Justice Brennan pointedly

noted in his dissent that the Court’s opinion “seems to suggest a fear

of too much justice.”56

Cracked Up—Discriminatory Sentencing in the War on Drugs

Anyone who doubts the devastating impact of McCleskey v. Kemp on

African American defendants throughout the criminal justice system,

including those ensnared by the War on Drugs, need only ask Edward

Clary. Two months after his eighteenth birthday, Clary was stopped

and searched in the St. Louis airport because he “looked like” a drug

T H E C O L O R O F J U S T I C E 1 4 1

courier. At the time, he was returning home from visiting some friends

in California. One of them persuaded him to take some drugs back

home to St. Louis. Clary had never attempted to deal drugs before, and

he had no criminal record.

During the search, the police found crack cocaine and promptly

arrested him. He was convicted in federal court and sentenced under

federal laws that punish crack offenses one hundred times more

severely than offenses involving powder cocaine. A conviction for the

sale of five hundred grams of powder cocaine triggers a five-year man-

datory sentence, while only five grams of crack triggers the same sen-

tence. Because Clary had been caught with more than fifty grams of

crack (less than two ounces), the sentencing judge believed he had no

choice but to sentence him—an eighteen-year-old who had no crimi-

nal record—to a minimum of ten years in federal prison.

Clary, like defendants in other crack cases, challenged the consti-

tutionality of the hundred-to-one ratio. His lawyers argued that the

law is arbitrary and irrational, because it imposes such vastly different

penalties on two forms of the same substance. They also argued that

the law discriminates against African Americans, because the major-

ity of those charged with crimes involving crack at that time were

black (approximately 93 percent of those convicted of crack offenses

were black; 5 percent were white), whereas those convicted of powder

cocaine offenses were predominantly white.

Every federal appellate court to have considered these claims

had rejected them on the ground that Congress— rightly or

wrongly— believed that crack was more dangerous to society, a view

supported by the testimony of some drug- abuse “experts” and police

officers. The fact that most of the evidence in support of any disparity

had since been discredited was deemed irrelevant; what mattered was

whether the law had seemed rational at the time it was adopted. Con-

gress, the courts concluded, is free to amend the law if circumstances

have changed.

1 4 2 T H E N E W J I M   C R O W

Courts also had rejected claims that crack sentencing laws were

racially discriminatory, largely on the grounds that the Supreme

Court’s decision in McCleskey v. Kemp precluded such a result. In the

years following McCleskey, lower courts consistently rejected claims of

race discrimination in the criminal justice system, finding that gross

racial disparities do not merit strict scrutiny in the absence of evidence

of explicit race discrimination—the very evidence unavailable in the

era of colorblindness.

Judge Clyde Cahill of the Federal District of Missouri, an African

American judge assigned Clary’s case, boldly challenged the prevailing

view that courts are powerless to address forms of race discrimina-

tion that are not overtly hostile. Cahill declared the hundred-to-one

ratio racially discriminatory in violation of the Fourteenth Amend-

ment, notwithstanding McCleskey.57 Although no admissions of racial

bias or racist intent could be found in the record, Judge Cahill believed

race was undeniably a factor in the crack sentencing laws and policies.

He traced the history of the get-tough movement and concluded that

fear coupled with unconscious racism had led to a lynch-mob men-

tality and a desire to control crime—and those deemed responsible

for it—at any cost. Cahill acknowledged that many people may not

believe they are motivated by discriminatory attitudes but argued that

we all have internalized fear of young black men, a fear reinforced by

media imagery that has helped to create a national image of the young

black male as a criminal. “The presumption of innocence is now a

legal myth,” he declared. “The 100-to-1 ratio, coupled with mandatory

minimum sentencing provided by federal statute, has created a situa-

tion that reeks with inhumanity and injustice. . . . If young white males

were being incarcerated at the same rate as young black males, the

statute would have been amended long ago.” Judge Cahill sentenced

Clary as if the drug he had carried home had been powder cocaine.

The sentence imposed was four years in prison. Clary served his term

and was released.

T H E C O L O R O F J U S T I C E 1 4 3

The prosecution appealed Clary’s case to the Eighth Circuit Court

of Appeals, which reversed Judge Cahill in a unanimous opinion, find-

ing that the case was not even close. In the court’s view, there was

no credible evidence that the crack penalties were motivated by any

conscious racial bigotry, as required by McCleskey v. Kemp. The court

remanded the case back to the district court for resentencing. Clary—

now married and a father—was ordered back to prison to complete his

ten-year term.58

Few challenges to sentencing schemes, patterns, or results have

been brought since McCleskey, for the exercise is plainly futile. Yet in

1995, a few brave souls challenged the implementation of Georgia’s

“two strikes and you’re out” sentencing scheme, which imposes life

imprisonment for a second drug offense. Georgia’s district attorneys,

who have unbridled discretion to decide whether to seek this harsh

penalty, had invoked it against only 1 percent of white defendants fac-

ing a second drug conviction but against 16 percent of black defen-

dants. The result was that 98.4 percent of those serving life sentences

under the provision were black. The Georgia Supreme Court ruled,

by a 4–3 vote, that the stark racial disparity presented a threshold

case of discrimination and required the prosecutors to offer a race-

neutral explanation for the results. Rather than offer a justification,

however, the Georgia attorney general filed a petition for rehearing

signed by every one of the state’s forty-six district attorneys, all of

whom were white. The petition argued that the Court’s decision was

a dire mistake; if the decision were allowed to stand and prosecutors

were compelled to explain gross racial disparities such as the ones at

issue, it would be a “substantial step toward invalidating” the death

penalty and would “paralyze the criminal justice system”—apparently

because severe and inexplicable racial disparities pervaded the system

as a whole. Thirteen days later, the Georgia Supreme Court reversed

itself, holding that the fact that 98.4 percent of the defendants selected

to receive life sentences for repeat drug offenses were black required

1 4 4 T H E N E W J I M   C R O W

no justification. The court’s new decision relied almost exclusively on

McCleskey v. Kemp. To date, not a single successful challenge has ever

been made to racial bias in sentencing under McCleskey v. Kemp any-

where in the United States.

Charging A head—United States v. Armstrong

If sentencing were the only stage of the criminal justice process in

which racial biases were allowed to flourish, it would be a tragedy of

gargantuan proportions. Thousands of people have had years of their

lives wasted in prison—years they would have been free if they had

been white. Some, like McCleskey, have been killed because of the

influence of race in the death penalty. Sentencing, however, is not the

end, but just the beginning. As we shall see, the legal rules governing

prosecutions, like those that govern sentencing decisions, maximize

rather than minimize racial bias in the drug war. The Supreme Court

has gone to great lengths to ensure that prosecutors are free to exer-

cise their discretion in any manner they choose, and it has closed the

courthouse doors to claims of racial bias.

As discussed in chapter 2, no one has more power in the criminal

justice system than prosecutors. Few rules constrain the exercise of

prosecutorial discretion. The prosecutor is free to dismiss a case for

any reason or no reason at all, regardless of the strength of the evi-

dence. The prosecutor is also free to file more charges against a defen-

dant than can realistically be proven in court, so long as probable cause

arguably exists. Whether a good plea deal is offered to a defendant is

entirely up to the prosecutor. And if the mood strikes, the prosecutor

can transfer drug defendants to the federal system, where the penalties

are far more severe. Juveniles, for their part, can be transferred to adult

court, where they can be sent to adult prison. Angela J. Davis, in her

authoritative study Arbitrary Justice: The Power of the American Pros-

ecutor, observes that “the most remarkable feature of these important,

T H E C O L O R O F J U S T I C E 1 4 5

sometimes life-and- death decisions is that they are totally discretion-

ary and virtually unreviewable.”59 Most prosecutors’ offices lack any

manual or guidebook advising prosecutors how to make discretionary

decisions. Even the American Bar Association’s standards of practice

for prosecutors are purely aspirational; no prosecutor is required to

follow the standards or even consider them.

Christopher Lee Armstrong learned the hard way that the Supreme

Court has little interest in ensuring that prosecutors exercise their

extraordinary discretion in a manner that is fair and nondiscrimi-

natory. He, along with four of his companions, was staying at a Los

Angeles motel in April 1992 when federal and state agents on a joint

drug crime task force raided their room and arrested them on fed-

eral drug charges—conspiracy to distribute more than fifty grams of

crack cocaine. The federal public defenders assigned to Armstrong’s

case were disturbed by the fact that Armstrong and his friends had

something in common with every other crack defendant their office

had represented during the past year: they were all black. In fact, of

the fifty-three crack cases their office had handled over the prior three

years, forty-eight defendants were black, five were Hispanic, and not

a single one was white. Armstrong’s lawyers found it puzzling that no

whites had been charged with crack offenses, given that most crack

users are white. They suspected that whites were being diverted by

federal prosecutors to the state system, where the penalties for crack

offenses were far less severe. The only way to prove this, though,

would be to gain access to the prosecutors’ records and find out just

how many white defendants were transferred to the state system and

why. Armstrong’s lawyers thus filed a motion asking the district court

for discovery of the prosecutors’ files to support their claim of selective

prosecution under the Fourteenth Amendment.

Nearly one hundred years earlier, in a case called Yick Wo v.

Hopkins, the Supreme Court had recognized that racially selec-

tive enforcement violates equal protection of the laws. In that case,

1 4 6 T H E N E W J I M   C R O W

decided in 1886, the Court unanimously overturned convictions of

two Chinese men who were operating laundries without a license.

San Francisco had denied licenses to all Chinese applicants, but grant-

ed licenses to all but one of the non-Chinese laundry operators who

applied. Law enforcement arrested more than a hundred people for

operating laundries without licenses, and every one of the arrestees

was Chinese. Overturning Yick Wo’s conviction, the Supreme Court

declared in a widely quoted passage, “Though the law itself be fair

on its face, and impartial in appearance, yet, if it is applied and

administered by public authority with an evil eye and an unequal

hand, so as practically to make unjust and illegal discriminations,

between persons in similar circumstances . . . the denial of equal

justice is still within the prohibition of the Constitution.”60 Arm-

strong’s lawyers sought to prove that, like the law at issue in Yick Wo,

federal crack laws were fair on their face and impartial in their

appearance, but were selectively enforced in a racially discriminatory

manner.

In support of their claim that Armstrong should, at the very least,

be entitled to discovery, Armstrong’s lawyers offered two sworn affi-

davits. One was from a halfway house intake coordinator who testi-

fied that, in his experience treating crack addicts, whites and blacks

dealt and used the drugs in similar proportions. The other affidavit

was from a defense attorney who had extensive experience in state

prosecutions. He testified that nonblack defendants were routinely

prosecuted in state, rather than federal, court. Arguably the best evi-

dence in support of Armstrong’s claims came from the government,

which submitted a list of more than two thousand people charged

with federal crack cocaine violations over a three-year period, all but

eleven of whom were black. None were white.

The district court ruled that the evidence presented was sufficient to

justify discovery for the purposes of determining whether the allega-

tions of selective enforcement were valid. The prosecutors, however,

T H E C O L O R O F J U S T I C E 1 4 7

refused to release any records and appealed the issue all the way to

the U.S. Supreme Court. In May 1996, the Supreme Court reversed. As

in McCleskey, the Court did not question the accuracy of the evidence

submitted, but ruled that because Armstrong failed to identify any

similarly situated white defendants who should have been charged in

federal court but were not, he was not entitled even to discovery on his

selective- prosecution claim. With no trace of irony, the Court demand-

ed that Armstrong produce in advance the very thing he sought in

discovery: information regarding white defendants who should have

been charged in federal court. That information, of course, was in the

prosecution’s possession and control, which is why Armstrong filed a

discovery motion in the first place.

As a result of the Armstrong decision, defendants who suspect racial

bias on the part of prosecutors are trapped in a classic catch-22. In order

to state a claim of selective prosecution, they are required to offer in

advance the very evidence that generally can be obtained only through

discovery of the prosecutor’s files. The Court justified this insurmount-

able hurdle on the grounds that considerable deference is owed the

exercise of prosecutorial discretion. Unless evidence of conscious,

intentional bias on the part of the prosecutor could be produced, the

Court would not allow any inquiry into the reasons for or causes of

apparent racial disparities in prosecutorial decision making. Again the

courthouse doors were closed, for all practical purposes, to claims of

racial bias in the administration of the criminal justice system.

Immunizing prosecutors from claims of racial bias and failing to

impose any meaningful check on the exercise of their discretion in

charging, plea bargaining, transferring cases, and sentencing has cre-

ated an environment in which conscious and unconscious biases are

allowed to flourish. Numerous studies have shown that prosecutors

interpret and respond to identical criminal activity differently based

on the race of the person charged with the crime.61 One widely cited

study was conducted by the San Jose Mercury News. The study reviewed

1 4 8 T H E N E W J I M   C R O W

seven hundred thousand criminal cases that were matched by crime

and criminal history of the defendant. The analysis revealed that sim-

ilarly situated whites were far more successful than African Ameri-

cans and Latinos in the plea bargaining process; in fact, “at virtually

every stage of pretrial negotiation, whites are more successful than

nonwhites.” 62

The most comprehensive studies of racial bias in the exercise of

prosecutorial and judicial discretion involve the treatment of juve-

niles. These studies have shown that youth of color are more likely

to be arrested, detained, formally charged, transferred to adult court,

and confined to secure residential facilities than their white counter-

parts.63 A report in 2000 observed that among youth who have never

been sent to a juvenile prison before, African Americans were more

than six times as likely as whites to be sentenced to prison for identical

crimes.64 A study sponsored by the U.S. Justice Department and sev-

eral of the nation’s leading foundations, published in 2007, found that

the impact of the biased treatment is magnified with each additional

step into the criminal justice system. African American youth account

for 16 percent of all youth, 28 percent of all juvenile arrests, 35 percent

of the youth waived to adult criminal court, and 58 percent of youth

admitted to state adult prison.65 A major reason for these disparities is

unconscious and conscious racial biases infecting decision making. In

the state of Washington, for example, a review of juvenile sentencing

reports found that prosecutors routinely described black and white

youth differently.66 Blacks committed crimes because of internal per-

sonality flaws such as disrespect. Whites did so because of external

conditions such as family conflict.

The risk that prosecutorial discretion will be racially biased is espe-

cially acute in the drug enforcement context, where virtually iden-

tical behavior is susceptible to a wide variety of interpretations and

responses and the media imagery and political discourse have been

so thoroughly racialized. Whether a kid is perceived as a dangerous

T H E C O L O R O F J U S T I C E 1 4 9

drug- dealing thug or instead is viewed as a good kid who was merely

experimenting with drugs and selling to a few of his friends has to

do with the ways in which information about illegal drug activity is

processed and interpreted, in a social climate in which drug dealing is

racially defined. As a former U.S. attorney explained:

I had an [assistant U.S. attorney who] wanted to drop the

gun charge against the defendant [in a case in which] there

were no extenuating circumstances. I asked, “Why do you

want to drop the gun offense?” And he said, “ ‘He’s a rural

guy and grew up on a farm. The gun he had with him was

a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles,

and it’s not like he was a gun- toting drug dealer.” But he

was a gun- toting drug dealer, exactly.

The decision in Armstrong effectively shields this type of biased

decision making from judicial scrutiny for racial bias. Prosecutors

are well aware that the exercise of their discretion is unchecked, pro-

vided no explicitly racist remarks are made, as it is next to impos-

sible for defendants to prove racial bias. It is difficult to imagine a

system better designed to ensure that racial biases and stereotypes are

given free rein— while at the same time appearing on the surface to be

colorblind—than the one devised by the U.S. Supreme Court.

In Defense of the A ll-W hite Jury—Purkett v. Elm

The rules governing jury selection provide yet another illustration of

the Court’s complete abdication of its responsibility to guarantee racial

minorities equal treatment under the law. In 1985, in Batson v. Kentucky,

the Court held that the Fourteenth Amendment prohibits prosecutors

from discriminating on the basis of race when selecting juries, a rul-

ing hailed as an important safeguard against all-white juries locking

150 T H E N E W J I M   C R O W

up African Americans based on racial biases and stereotypes. Prior

to Batson, prosecutors had been allowed to strike blacks from juries,

provided they did not always strike black jurors. The Supreme Court

had ruled in 1965, in Swain v. Alabama, that an equal-protection claim

would arise only if a defendant could prove that a prosecutor struck

African American jurors in every case, regardless of the crime involved

or regardless of the races of the defendant or the victim.67 Two decades

later, in Batson, the Supreme Court reversed course, a nod to the newly

minted public consensus that explicit race discrimination is an affront

to American values. Almost immediately after Batson was decided, how-

ever, it became readily apparent that prosecutors had no difficulty cir-

cumventing the formal requirement of colorblindness in jury selection

by means of a form of subterfuge the Court would come to accept, if not

endorse.

The history of race discrimination in jury selection dates back to

slavery. Until 1860, no black person had ever sat on a jury in the Unit-

ed States. During the Reconstruction era, African Americans began

to serve on juries in the South for the first time. The all-white jury

promptly returned, however, when Democratic conservatives sought

to “redeem” the South by stripping blacks of their right to vote and

their right to serve on juries. In 1880, the Supreme Court intervened,

striking down a West Virginia statute that expressly reserved jury ser-

vice to white men. Citing the recently enacted Fourteenth Amendment,

the Court declared that the exclusion of blacks from jury service was

“practically a brand upon them, affixed by law, an assertion of their

inferiority, and a stimulant to that race prejudice which is an impedi-

ment to . . . equal justice.” 68 The Court asked, “How can it be main-

tained that compelling a colored man to submit to a trial for his life by

a jury drawn from a panel from which the State has expressly excluded

every man of his race, because of his color alone, however well quali-

fied in other respects, is not a denial to him of equal protection?” 69

For all its bluster, the Court offered no meaningful protection

against jury discrimination in the years that followed. As legal scholar

T H E C O L O R O F J U S T I C E 15 1

Benno Schmidt has observed, from the end of Reconstruction through

the New Deal, “the systematic exclusion of black men from Southern

juries was about as plain as any legal discrimination could be short of

proclamation in state statutes or confession by state officials.” 70 The

Supreme Court repeatedly upheld convictions of black defendants by

all-white juries in situations where exclusion of black jurors was obvi-

ous.71 The only case in which the Court overturned a conviction on the

grounds of discrimination in jury selection was Neal v. Delaware, a case

decided in 1935. State law in Delaware once had explicitly restricted

jury service to white men, and “no colored citizen had ever been sum-

moned as a juror.”72 The Delaware Supreme Court had rejected Neal’s

equal protection claim on the grounds that “the great body of black

men residing in this State are utterly unqualified [for jury service] by

want of intelligence, experience, or moral integrity.”73 The Supreme

Court reversed. Clearly, what offended the U.S. Supreme Court was

not the exclusion of blacks from jury service per se, but rather doing so

openly and explicitly. That orientation continues to hold today.

Notwithstanding Batson’s formal prohibition on race discrimination

in jury selection, the Supreme Court and lower federal courts have

tolerated all but the most egregious examples of racial bias in jury

selection. Miller El v. Cockrell was such a case.74 That case involved

a jury-selection manual that sanctioned race-based selection. The

Court noted that it was unclear whether the official policy of race-

based exclusion was still in effect, but the prosecution did in fact

exclude ten of eleven black jurors, in part by employing an unusual

practice of “jury shuffling” that reduced the number of black jurors.75

The prosecution also engaged in disparate questioning of jurors based

on race—practices that seemed linked to the jury-selection manual.

This was a highly unusual case. In typical cases, there are no official

policies authorizing race discrimination in jury selection still lurking

around, arguably in effect. Normally, the discrimination is obvious

yet unstated, and the systematic exclusion of black jurors continues

largely unabated through use of the peremptory strike.

15 2 T H E N E W J I M   C R O W

Peremptory strikes have long been controversial. Both prosecutors

and defense attorneys are permitted to strike “peremptorily” jurors

they don’t like—that is, people they believe will not respond favor-

ably to the evidence or witnesses they intend to present at trial. In

theory, peremptory strikes may increase the fairness of the proceeding

by eliminating jurors who may be biased but whose biases cannot be

demonstrated convincingly to a judge. In practice, however, peremp-

tory challenges are notoriously discriminatory. Lawyers typically have

little information about potential jurors, so their decisions to strike

individual jurors tend to be based on nothing more than stereotypes,

prejudices, and hunches. Achieving an all-white jury, or nearly all-

white jury, is easy in most jurisdictions, because relatively few racial

minorities are included in the jury pool. Potential jurors are typically

called for service based on the list of registered voters or Department

of Motor Vehicle lists—sources that contain disproportionately fewer

people of color, because people of color are significantly less likely to

own cars or register to vote. Making matters worse, thirty-one states

and the federal government subscribe to the practice of lifetime felon

exclusion from juries. As a result, about 30 percent of black men are

automatically banned from jury service for life.76 Accordingly, no more

than a handful of strikes are necessary in many cases to eliminate

all or nearly all black jurors. The practice of systematically excluding

black jurors has not been halted by Batson; the only thing that has

changed is that prosecutors must come up with a race-neutral excuse

for the strikes—an exceedingly easy task.

In fact, one comprehensive study reviewed all published deci-

sions involving Batson challenges from 1986 to 1992 and concluded

that prosecutors almost never fail to successfully craft acceptable

race-neutral explanations to justify striking black jurors.77 Courts

accept explanations that jurors are too young, too old, too conserva-

tive, too liberal, too comfortable, or too uncomfortable. Clothing is

also a favorite reason; jurors have been stricken for wearing hats or

T H E C O L O R O F J U S T I C E 15 3

sunglasses. Even explanations that might correlate with race, such

as lack of education, unemployment, poverty, being single, living in

the same neighborhood as the defendant, or prior involvement with

the criminal justice system—have all been accepted as perfectly good,

non- pretextual excuses for striking African Americans from juries.

As professor Sheri Lynn Johnson once remarked, “If prosecutors exist

who . . . cannot create a ‘racially neutral’ reason for discriminating on

the basis of race, bar exams are too easy.”78

Given how flagrantly prosecutors were violating Batson’s ban on race

discrimination in jury selection, it was reasonable to hope that, if pre-

sented with a particularly repugnant case, the Supreme Court might be

willing to draw the line at practices that make a mockery of the antidis-

crimination principle. Granted, the Court had been unwilling to accept

statistical proof of race discrimination in sentencing in McCleskey, and

it had brushed off concerns of racial bias in discretionary police stops

in Whren, and it had granted virtual immunity to prosecutors in their

charging decisions in Armstrong, but would it go so far as to allow

prosecutors to offer blatantly absurd, downright laughable excuses for

striking blacks from juries? It turns out the answer was yes.

In Purkett v. Elm, in 1995, the Supreme Court ruled that any race-

neutral reason, no matter how silly, ridiculous, or superstitious, is

enough to satisfy the prosecutor’s burden of showing that a pattern of

striking a particular racial group is not, in fact, based on race. In that

case, the prosecutor offered the following explanation to justify his

strikes of black jurors:

I struck [juror] number twenty-two because of his long

hair. He had long curly hair. He had the longest hair of

anybody on the panel by far. He appeared not to be a good

juror for that fact. . . . Also, he had a mustache and a goa-

tee type beard. And juror number twenty-four also had a

mustache and goatee type beard. . . . And I don’t like the

15 4 T H E N E W J I M   C R O W

way they looked, with the way the hair is cut, both of them.

And the mustaches and the beards look suspicious to me.79

The Court of Appeals for the Eighth Circuit ruled that the foregoing

explanation for the prosecutor’s strikes of black jurors was insufficient

and should have been rejected by the trial court because long hair and

facial hair are not plausibly related to a person’s ability to perform as

a juror. The appellate court explained: “Where the prosecution strikes

a prospective juror who is a member of the defendant’s racial group,

solely on the basis of factors which are facially irrelevant to the ques-

tion of whether that person is qualified to serve as a juror in the par-

ticular case, the prosecution must at least articulate some plausible

race neutral reason for believing that those factors will somehow affect

the person’s ability to perform his or her duties as a juror.”80

The U.S. Supreme Court reversed, holding that when a pattern of

race-based strikes has been identified by the defense, the prosecutor

need not provide “an explanation that is persuasive, or even plausi-

ble.”81 Once the reason is offered, a trial judge may choose to believe

(or disbelieve) any “silly or superstitious” reason offered by prosecu-

tors to explain a pattern of strikes that appear to be based on race.82

The Court sent a clear message that appellate courts are largely free

to accept the reasons offered by a prosecutor for excluding prospec-

tive black jurors—no matter how irrational or absurd the reasons

may seem.

The Occupation—Policing the Enemy

The Court’s blind eye to race discrimination in the criminal justice

system has been especially problematic in policing. Racial bias is most

acute at the point of entry into the system for two reasons: discre-

tion and authorization. Although prosecutors, as a group, have the

greatest power in the criminal justice system, police have the greatest

T H E C O L O R O F J U S T I C E 15 5

discretion— discretion that is amplified in drug-law enforcement. And

unbeknownst to the general public, the Supreme Court has actually

authorized race discrimination in policing, rather than adopting legal

rules banning it.

Racially biased police discretion is key to understanding how the

overwhelming majority of people who get swept into the criminal jus-

tice system in the War on Drugs turn out to be black or brown, even

though the police adamantly deny that they engage in racial profil-

ing. In the drug war, police have discretion regarding whom to target

(which individuals), as well as where to target (which neighborhoods

or communities). As noted earlier, at least 10 percent of Americans vio-

late drug laws every year, and people of all races engage in illegal drug

activity at similar rates. With such an extraordinarily large population

to choose from, decisions must be made regarding who should be tar-

geted and where the drug war should be waged.

From the outset, the drug war could have been waged primarily in

overwhelmingly white suburbs or on college campuses. SWAT teams

could have rappelled from helicopters in gated suburban communities

and raided the homes of high school lacrosse players known for host-

ing coke and ecstasy parties after their games. The police could have

seized televisions, furniture, and cash from fraternity houses based

on an anonymous tip that a few joints or a stash of cocaine could be

found hidden in someone’s dresser drawer. Suburban homemakers

could have been placed under surveillance and subjected to under-

cover operations designed to catch them violating laws regulating the

use and sale of prescription “uppers.” All of this could have happened

as a matter of routine in white communities, but it did not.

Instead, when police go looking for drugs, they look in the ’hood.

Tactics that would be political suicide in an upscale white suburb are

not even newsworthy in poor black and brown communities. So long as

mass drug arrests are concentrated in impoverished urban areas, police

chiefs have little reason to fear a political backlash, no matter how

15 6 T H E N E W J I M   C R O W

aggressive and warlike the efforts may be. And so long as the number of

drug arrests increases or at least remains high, federal dollars continue

to flow in and fill the department’s coffers. As one former prosecutor

put it, “It’s a lot easier to go out to the ’hood, so to speak, and pick

somebody than to put your resources in an undercover [operation in a]

community where there are potentially politically powerful people.”83

The hypersegregation of the black poor in ghetto communities has

made the roundup easy. Confined to ghetto areas and lacking politi-

cal power, the black poor are convenient targets. Douglas Massey and

Nancy Denton’s book, American Apartheid, documents how racially

segregated ghettos were deliberately created by federal policy, not

impersonal market forces or private housing choices.84 The enduring

racial isolation of the ghetto poor has made them uniquely vulnerable

in the War on Drugs. What happens to them does not directly affect—

and is scarcely noticed by—the privileged beyond the ghetto’s invis-

ible walls. Thus it is here, in the poverty-stricken, racially segregated

ghettos, where the War on Poverty has been abandoned and factories

have disappeared, that the drug war has been waged with the greatest

ferocity. SWAT teams are deployed here; buy-and-bust operations are

concentrated here; drug raids of apartment buildings occur here; stop-

and-frisk operations occur on the streets here. Black and brown youth

are the primary targets. It is not uncommon for a young black teenager

living in a ghetto community to be stopped, interrogated, and frisked

numerous times in the course of a month, or even a single week, often by

paramilitary units. Studies of racial profiling typically report the total

number of people stopped and searched, disaggregated by race. These

studies have led some policing experts to conclude that racial profiling

is actually “worse” in white communities, because the racial disparities

in stop and search rates are much greater there. What these studies do

not reveal, however, is the frequency with which any given individual

is likely to be stopped in specific, racially defined neighborhoods.

The militarized nature of law enforcement in ghetto communities

T H E C O L O R O F J U S T I C E 15 7

has inspired rap artists and black youth to refer to the police presence

in black communities as “The Occupation.” In these occupied terri-

tories, many black youth automatically “assume the position” when a

patrol car pulls up, knowing full well that they will be detained and

frisked no matter what. This dynamic often comes as a surprise to

those who have spent little time in ghettos. Craig Futterman, a law

professor at the University of Chicago, reports that his students fre-

quently express shock and dismay when they venture into those com-

munities for the first time and witness the distance between abstract

legal principles and actual practice. One student reported, following

her ride- along with Chicago police: “Each time we drove into a public

housing project and stopped the car, every young black man in the area

would almost reflexively place his hands up against the car and spread

his legs to be searched. And the officers would search them. The offi-

cers would then get back in the car and stop in another project, and this

would happen again. This repeated itself throughout the entire day. I

couldn’t believe it. This was nothing like we learned in law school. But

it just seemed so normal—for the police and the young men.”

Numerous scholars (and many law enforcement officials) attempt to

justify the concentration of drug law enforcement resources in ghetto

communities on the grounds that it is easier for the police to combat

illegal drug activity there. The theory is that black and Latino drug

users are more likely than white users to obtain illegal drugs in public

spaces that are visible to the police, and therefore it is more efficient

and convenient for the police to concentrate their efforts on open-air

drug markets in ghetto communities. Sociologists have been major

proponents of this line of reasoning, pointing out that differential

access to private space influences the likelihood that criminal behav-

ior will be detected. Because poor people lack access to private space

(often sharing small apartments with numerous family members or

relatives), their criminal activity is more likely to be conducted out-

doors. Concentrating law enforcement efforts in locations where drug

15 8 T H E N E W J I M   C R O W

activity will be more easily detected is viewed as a race-neutral orga-

nizational necessity. This argument is often buttressed by claims that

most citizen complaints about illegal drug activity come from ghetto

areas, and that the violence associated with the drug trade occurs in

inner cities. These facts, drug war defenders claim, make the decision

to wage the drug war almost exclusively in poor communities of color

an easy and logical choice.

This line of reasoning is weaker than it initially appears. Many law

enforcement officials acknowledge that the demand for illegal drugs

is so great—and the lack of alternative sources of income so few in

ghetto communities—that “if you take one dealer off the street, he’ll

be replaced within an hour.” Many also admit that a predictable con-

sequence of breaking up one drug ring is a slew of violence as others

fight for control of the previously stabilized market.85 These realities

suggest—if the past two decades of endless war somehow did not—

that the drug war is doomed to fail. They also call into question the

legitimacy of “convenience” as an excuse for the mass imprisonment

of black and brown men in ghetto communities.

Even putting aside such concerns, though, recent research indicates

that the basic assumptions upon which drug war defenses typically

rest are simply wrong. The conventional wisdom—that “get tough”

tactics are a regrettable necessity in poor communities of color and

that efficiency requires the drug war to be waged in the most vulner-

able neighborhoods—turns out to be, as many have long suspected,

nothing more than wartime propaganda, not sound policy.

Unconventional Wisdom

In 2002, a team of researchers at the University of Washington decided

to take the defenses of the drug war seriously by subjecting the argu-

ments to empirical testing in a major study of drug-law enforcement in

a racially mixed city—Seattle.86 The study found that, contrary to the

prevailing “common sense,” the high arrest rates of African Americans

T H E C O L O R O F J U S T I C E 159

in drug-law enforcement could not be explained by rates of offending;

nor could they be explained by other standard excuses, such as the

ease and efficiency of policing open-air drug markets, citizen com-

plaints, crime rates, or drug- related violence. The study also debunked

the assumption that white drug dealers deal indoors, making their

criminal activity more difficult to detect.

The authors found that it was untrue stereotypes about crack mar-

kets, crack dealers, and crack babies—not facts—that were driving

discretionary decision making by the Seattle Police Department. The

facts were as follows: Seattle residents were far more likely to report

suspected narcotics activities in residences—not outdoors—but police

devoted their resources to open-air drug markets and to the one pre-

cinct that was least likely to be identified as the site of suspected drug

activity in citizen complaints. In fact, although hundreds of outdoor

drug transactions were recorded in predominantly white areas of Seat-

tle, police concentrated their drug enforcement efforts in one down-

town drug market where the frequency of drug transactions was much

lower. In racially mixed open-air drug markets, black dealers were

far more likely to be arrested than whites, even though white dealers

were present and visible. And the department focused overwhelming-

ly on crack—the one drug in Seattle more likely to be sold by Afri-

can Americans— despite the fact that local hospital records indicated

that overdose deaths involving heroin were more numerous than all

overdose deaths for crack and powder cocaine combined. Local police

acknowledged that no significant level of violence was associated with

crack in Seattle and that other drugs were causing more hospitaliza-

tions, but steadfastly maintained that their deployment decisions were

nondiscriminatory.

The study’s authors concluded, based on their review and analysis of

the empirical evidence, that the Seattle Police Department’s decisions

to focus so heavily on crack, to the near exclusion of other drugs, and

to concentrate its efforts on outdoor drug markets in downtown areas

rather than drug markets located indoors or in predominantly white

1 6 0 T H E N E W J I M   C R O W

communities, reflect “a racialized conception of the drug problem.”87

As the authors put it: “[The Seattle Police Department’s] focus on black

and Latino individuals and on the drug most strongly associated with

‘blackness’ suggest that law enforcement policies and practices are

predicated on the assumption that the drug problem is, in fact, a black

and Latino one, and that crack, the drug most strongly associated with

urban blacks, is ‘the worst.’”88 This racialized cultural script about

who and what constitutes the drug problem renders illegal drug activ-

ity by whites invisible. “White people,” the study’s authors observed,

“are simply not perceived as drug offenders by Seattle police officers.”89

Hollow Hope

One might imagine that the facts described above would provide

grounds for a lawsuit challenging the Seattle Police Department’s

drug war tactics as a violation of the equal protection clause of the

Fourteenth Amendment and demanding reform. After all, obtaining

reform through the city council or state legislature may seem unlikely,

for black “criminals” are perhaps the most despised minority in the

U.S. population. Few politicians will leap at the opportunity to sup-

port black people labeled criminals. Accordingly, a lawsuit may seem

like the best option. The purpose of our Constitution—especially the

Fourteenth Amendment’s equal-protection guarantee—is to protect

minority rights even when, or especially when, they are unpopular. So

shouldn’t African American defendants be able to file a successful law-

suit demanding an end to these discriminatory practices or challenge

their drug arrests on the grounds that these law enforcement practices

are unlawfully tainted by race? The answer is yes, they should, but no,

they probably can’t.

As legal scholar David Cole has observed, “The Court has imposed

nearly insurmountable barriers to persons challenging race discrimi-

nation at all stages of the criminal justice system.”90 The barriers are

T H E C O L O R O F J U S T I C E 1 6 1

so high that few lawsuits are even filed, notwithstanding shocking and

indefensible racial disparities. Procedural hurdles, such as the “stand-

ing requirement,” have made it virtually impossible to seek reform of

law enforcement agencies through the judicial process, even when the

policies or practices at issue are illegal or plainly discriminatory.

Adolph Lyons’s attempt to ban the use of lethal chokeholds by the

Los Angeles Police Department (LAPD) is a good example. Lyons, a

twenty-four-year-old black man, was driving his car in Los Angeles

one morning when he was pulled over by four police officers for a

burned-out taillight. With guns drawn, police ordered Lyons out of

his car. He obeyed. The officers told him to face the car, spread his legs,

and put his hands on his head. Again, Lyons did as he was told. After

the officers completed a pat-down, Lyons dropped his hands, prompt-

ing an officer to slam Lyons’s hands back on his head. When Lyons

complained that the car keys he was holding were causing him pain,

the officer forced Lyons into a chokehold. He lost consciousness and

collapsed. When he awoke, “he was spitting up blood and dirt, had

urinated and defecated, and had suffered permanent damage to his

larynx.”91 The officers issued a traffic ticket for the burned-out taillight

and released him.

Lyons sued the City of Los Angeles for violation of his constitutional

rights and sought, as a remedy, a ban against future use of the choke-

holds. By the time his case reached the Supreme Court, sixteen people

had been killed by police use of the chokehold, twelve of them black

men. The Supreme Court dismissed the case, however, ruling that

Lyons lacked “standing” to seek an injunction against the deadly prac-

tice. In order to have standing, the Court reasoned, Lyons would have

to show that he was highly likely to be subject to a chokehold again.

Lyons argued that, as a black man, he had good reason to fear he

would be stopped by the police for a minor traffic violation and sub-

jected to a chokehold again. He had done nothing to provoke the choke-

hold; to the contrary, he had obeyed instructions and cooperated fully.

1 6 2 T H E N E W J I M   C R O W

Why wouldn’t he believe he was at risk of being stopped and choked

again? The Court, however, ruled that in order to have standing

Lyons would have had not only to allege that he would

have another encounter with the police but also to make

the incredible assertion either (1) that all police officers in

Los Angeles always choke any citizen with whom they have

an encounter, whether for the purpose of arrest, issuing a

citation or for questioning, or (2) that the City ordered or

authorized the police to act in such a manner.92

Lyons did not allege race discrimination, but if he had, that claim

would almost certainly have been a loser too. The Court’s ruling in

Lyons makes it extremely difficult to challenge systemic race discrimi-

nation in law enforcement and obtain meaningful policy reform. For

example, African Americans in Seattle who hope to end the Seattle

police department’s discriminatory tactics through litigation would be

required to prove that they plan to violate drug laws and that they

will almost certainly face race discrimination by Seattle police officers

engaged in drug-law enforcement, in order to have standing to seek

reform—i.e., just to get in the courthouse door.

It is worthy of note that the Lyons standard does not apply to suits

for damages. But any suggestion that litigants need not worry about

policy reform because they can always sue for damages would be

disingenuous—particularly as applied to race discrimination cases.

Why? Neither the state nor the state police can be sued for damages.

In a series of cases, the Supreme Court has ruled that the state and its

offices are immune from federal suits for damages under the Eleventh

Amendment to the Constitution (unless they consent), and the state

can’t be sued for damages for constitutional violations in state court

either.93 City police departments, like the LAPD, are also typically

off-limits. The Court has ruled that a city police department cannot

T H E C O L O R O F J U S T I C E 1 6 3

be sued for damages unless a specific city policy or custom can be

identified authorizing the illegal practice.94 Most cities, of course, do

not have policies specifically authorizing illegal conduct (particularly

race discrimination), and “custom” is notoriously difficult to prove.

Accordingly, suing a city police department for damages is generally

not an option. Yet even if all of those hurdles can somehow be over-

come, there is still the matter of proving a claim of race discrimination.

As we have seen, to establish an equal-protection violation, one must

prove intentional discrimination—conscious racial bias. Law enforce-

ment officials rarely admit to having acted for racial reasons, leaving

most victims of discriminatory law enforcement without anyone to sue

and without a claim that can be proven in a court of law. But even if a

plaintiff managed to overcome all of the procedural hurdles and prove

that a police officer deliberately exercised his or her discretion on the

basis of race, that still might not be enough.

Race as a Factor

The dirty little secret of policing is that the Supreme Court has actu-

ally granted the police license to discriminate. This fact is not adver-

tised by police departments, because law enforcement officials know

that the public would not respond well to this fact in the era of color-

blindness. It is the sort of thing that is better left unsaid. Civil rights

lawyers—including those litigating racial profiling cases—have been

complicit in this silence, fearing that any acknowledgment that race-

based policing is authorized by law would legitimate in the public

mind the very practice they are hoping to eradicate.

The truth, however, is this: at other stages of the criminal justice

process, the Court has indicated that overt racial bias necessarily trig-

gers strict scrutiny—a concession that has not been costly, as very

few law enforcement officials today are foolish enough to admit bias

openly. But the Supreme Court has indicated that in policing, race can

1 6 4 T H E N E W J I M   C R O W

be used as a factor in discretionary decision making. In United States

v. Brignoni-Ponce, the Court concluded it was permissible under the

equal protection clause of the Fourteenth Amendment for the police to

use race as a factor in making decisions about which motorists to stop

and search. In that case, the Court concluded that the police could

take a person’s Mexican appearance into account when developing

reasonable suspicion that a vehicle may contain undocumented immi-

grants. The Court said that “the likelihood that any person of Mexican

ancestry is an alien is high enough to make Mexican appearance a

relevant factor.”95 Some commentators have argued that Brignoni-Ponce

may be limited to the immigration context; the Court might not apply

the same principle to drug-law enforcement. It is not obvious what the

rational basis would be for limiting overt race discrimination by police

to immigration. The likelihood that a person of Mexican ancestry is an

“alien” could not be significantly higher than the likelihood that any

random black person is a “drug criminal.”

The Court’s quiet blessing of race-based traffic stops has led to

something of an Orwellian public discourse regarding racial profiling.

Police departments and highway patrol agencies frequently declare,

“We do not engage in racial profiling,” even though their officers rou-

tinely use race as a factor when making decisions regarding whom to

stop and search. The justification for the implicit doublespeak—“we

do not racial-profile; we just stop people based on race”—can be

explained in part by the Supreme Court’s jurisprudence. Because the

Supreme Court has authorized the police to use race as a factor when

making decisions regarding whom to stop and search, police depart-

ments believe that racial profiling exists only when race is the sole

factor. Thus, if race is one factor but not the only factor, then it doesn’t

really count as a factor at all.

The absurdity of this logic is evidenced by the fact that police almost

never claim to stop anyone solely because of race. A young black male

wearing baggy pants, standing in front of his high school surrounded

T H E C O L O R O F J U S T I C E 1 6 5

by a group of similarly dressed black friends, may be stopped and

searched because police believe he “looks like” a drug dealer. The

police can easily argue, if challenged, that non- racial factors – such

as gender, age, attire and location – played a role in their assessment.

The problem, of course, is that whether or not race is the sole reason

for a stop or search, it is frequently a determinative reason. A young

white male wearing baggy pants, standing in front of his high school

and surrounded by his friends, might well be ignored by police offi-

cers. It might never occur to them that a group of young white kids

might be dealing dope in front of their high school. Similarly situ-

ated people inevitably are treated differently when police are granted

permission to rely on racial stereotypes when making discretionary

decisions.

Equally important, though, the sole- factor test ignores the ways in

which seemingly race- neutral factors—such as location— operate in a

highly discriminatory fashion. Some law enforcement officials claim

that they would stop and search white kids wearing baggy jeans in the

ghetto (that would be suspicious)—it just so happens they’re rarely

there. Subjecting people to stops and searches because they live in

“high crime” ghettos cannot be said to be truly race- neutral, given

that the ghetto itself was constructed to contain and control groups of

people defined by race.96 Even seemingly race-neutral factors such as

“prior criminal history” are not truly race-neutral. A black kid arrest-

ed twice for possession of marijuana may be no more of a “repeat

offender” than a white frat boy who regularly smokes pot in his dorm

room. But because of his race and his confinement to a racially segre-

gated ghetto, the black kid has a criminal record, while the white frat

boy, because of his race and relative privilege, does not. Thus, when

prosecutors throw the book at black youth who have multiple arrests

or convictions, or when police stalk people with criminal records and

subject them to regular frisks and searches on the grounds that it

makes sense to “watch criminals closely,” they are often exacerbating

1 6 6 T H E N E W J I M   C R O W

racial disparities created by the discretionary decision to wage the

War on Drugs almost exclusively in poor communities of color.

Defending against claims of racial bias in policing is easy. Because

police officers never offer race as the only reason for a stop or search,

any police officer, even the most racist, will be able to cite multiple

nonracial reasons for initiating an encounter, including any number

of the so-called “indicators” of drug trafficking discussed in chapter 2,

such as appearing too nervous or too calm. Police officers (like pros-

ecutors) are highly adept at offering race-neutral reasons for actions

that consistently disadvantage African Americans. Whereas prosecu-

tors claim they strike black jurors not because of their race but because

of their hairstyle, police officers have their own stock excuses—e.g.,

“Your honor, we didn’t stop him because he’s black; we stopped him

because he failed to use his turn signal at the right time,” or “It wasn’t

just because he was black; it was also because he seemed nervous when

he saw the police car.” Judges are just as reluctant to second-guess an

officer’s motives as they are to second-guess prosecutors’. So long as

officers refrain from uttering racial epithets and so long as they show

the good sense not to say “the only reason I stopped him was ’cause

he’s black,” courts generally turn a blind eye to patterns of discrimina-

tion by the police.

Studies of racial profiling have shown that police do, in fact, exercise

their discretion regarding whom to stop and search in the drug war in

a highly discriminatory manner.97 Not only do police discriminate in

their determinations regarding where to wage the war, but they also

discriminate in their judgments regarding whom to target outside of

the ghetto’s invisible walls.

The most famous of these studies were conducted in New Jersey

and Maryland in the 1990s. Allegations of racial profiling in federally

funded drug interdiction operations resulted in numerous investiga-

tions and comprehensive data demonstrating a dramatic pattern of

racial bias in highway patrol stops and searches. These drug interdic-

T H E C O L O R O F J U S T I C E 1 6 7

tion programs were the brainchild of the DEA, part of the federally

funded program known as Operation Pipeline.

In New Jersey, the data showed that only 15 percent of all drivers

on the New Jersey Turnpike were racial minorities, yet 42 percent of

all stops and 73 percent of all arrests were of black motorists— despite

the fact that blacks and whites violated traffic laws at almost exactly

the same rate. While radar stops were relatively consistent with the

percentage of minority violators, discretionary stops made by offi-

cers involved in drug interdiction resulted in double the number of

stops of minorities.98 A subsequent study conducted by the attorney

general of New Jersey found that searches on the turnpike were even

more discriminatory than the initial stops—77 percent of all consent

searches were of minorities. The Maryland studies produced similar

results: African Americans comprised only 17 percent of drivers along

a stretch of I-95 outside of Baltimore, yet they were 70 percent of those

who were stopped and searched. Only 21 percent of all drivers along

that stretch of highway were racial minorities (Latinos, Asians, and

African Americans), yet those groups comprised nearly 80 percent of

those pulled over and searched.99

What most surprised many analysts was that, in both studies,

whites were actually more likely than people of color to be carrying

illegal drugs or contraband in their vehicles. In fact, in New Jersey,

whites were almost twice as likely to be found with illegal drugs or

contraband as African Americans, and five times as likely to be found

with contraband as Latinos.100 Although whites were more likely to

be guilty of carrying drugs, they were far less likely to be viewed as

suspicious, resulting in relatively few stops, searches, and arrests of

whites. The former New Jersey attorney general dubbed this phenome-

non the “circular illogic of racial profiling.” Law enforcement officials,

he explained, often point to the racial composition of our prisons and

jails as a justification for targeting racial minorities, but the empirical

evidence actually suggested the opposite conclusion was warranted.

1 6 8 T H E N E W J I M   C R O W

The disproportionate imprisonment of people of color was, in part, a

product of racial profiling—not a justification for it.

In the years following the release of the New Jersey and Maryland

data, dozens of other studies of racial profiling have been conducted.

A brief sampling:

• In Volusia County, Florida, a reporter obtained 148 hours of

video footage documenting more than 1,000 highway stops

conducted by state troopers. Only 5 percent of the drivers

on the road were African American or Latino, but more than

80 percent of the people stopped and searched were minori-

ties.101

• In Illinois, the state police initiated a drug interdiction pro-

gram known as Operation Valkyrie that targeted Latino mo-

torists. While Latinos comprised less than 8 percent of the

Illinois population and took fewer than 3 percent of the per-

sonal vehicle trips in Illinois, they comprised approximately

30 percent of the motorists stopped by drug interdiction offi-

cers for discretionary offenses, such as failure to signal a lane

change.102 Latinos, however, were significantly less likely

than whites to have illegal contraband in their vehicles.

• A racial profiling study in Oakland, California, in 2001

showed that African Americans were approximately twice as

likely as whites to be stopped, and three times as likely to be

searched.103

Pedestrian stops, too, have been the subject of study and contro-

versy. The New York Police Department released statistics in Febru-

ary 2007 showing that during the prior year its officers stopped an

astounding 508,540 people—an average of 1,393 per day—who were

walking down the street, perhaps on their way to the subway, grocery

store, or bus stop. Often the stops included searches for illegal drugs or

T H E C O L O R O F J U S T I C E 1 6 9

guns— searches that frequently required people to lie face down on the

pavement or stand spread- eagled against a wall while police officers

aggressively groped all over their bodies while bystanders watched or

walked by. The vast majority of those stopped and searched were racial

minorities, and more than half were African American.104

The NYPD began collecting data on pedestrian stops following the

shooting of Amadou Diallo, an African immigrant who died in a hail

of police bullets on the front steps of his own home in February 1999.

Diallo was followed to his apartment building by four white police

officers—members of the elite Street Crime Unit—who viewed him as

suspicious and wanted to interrogate him. They ordered him to stop, but,

according to the officers, Diallo did not respond immediately. He walked

a bit farther to his apartment building, opened the door, and retrieved his

wallet—probably to produce identification. The officers said they thought

the wallet was a gun, and fired forty-one times. Amadou Diallo died at

the age of twenty-two. He was unarmed and had no criminal record.

Diallo’s murder sparked huge protests, resulting in a series of stud-

ies commissioned by the attorney general of New York. The first study

found that African Americans were stopped six times more frequently

than whites, and that stops of African Americans were less likely to

result in arrests than stops of whites—presumably because blacks were

less likely to be found with drugs or other contraband.105 Although the

NYPD attempted to justify the stops on the grounds that they were

designed to get guns off the street, stops by the Street Crime Unit—the

group of officers who supposedly are specially trained to identify gun-

toting thugs—yielded a weapon in only 2.5 percent of all stops.106

Rather than reducing reliance on stop-and-frisk tactics following the

Diallo shooting and the release of this disturbing data, the NYPD dra-

matically increased its number of pedestrian stops and continued to

stop and frisk African Americans at grossly disproportionate rates. The

NYPD stopped five times more people in 2005 than in 2002—the over-

whelming majority of whom were African American or Latino.107 By

1 7 0 T H E N E W J I M   C R O W

2008, the NYPD was stopping 545,000 in a single year, and 80 percent

of the people stopped were African Americans and Latinos. Whites

comprised a mere 8 percent of people frisked by the NYPD, while Afri-

can Americans accounted for 85 percent of all frisks.108 A report by The

New York Times found that the highest concentration of stops in the

city was a roughly eight-block area of Brownsville, Brooklyn, that was

predominately black. Residents there were stopped at a rate thirteen

times the city average.109

Although the NYPD frequently attempts to justify stop-and-frisk

operations in poor communities of color on the grounds that such tac-

tics are necessary to get guns off the streets, less than 1 percent of stops

(0.15 percent) resulted in guns being found, and guns and other con-

traband were seized less often in stops of African Americans and Lati-

nos than of whites.110 As Darius Charney, a lawyer for the Center for

Constitutional Rights, observed, these studies “confirm what we have

been saying for the last 10 or 11 years, which is that with stop-and-

frisk patterns—it is really race, not crime, that is driving this.”111

Ultimately, these stop-and-frisk operations amount to much more

than humiliating, demeaning rituals for young men of color, who must

raise their arms and spread their legs, always careful not to make a

sudden move or gesture that could provide an excuse for brutal—even

lethal—force. Like the days when black men were expected to step

off the sidewalk and cast their eyes downward when a white woman

passed, young black men know the drill when they see the police cross-

ing the street toward them; it is a ritual of dominance and submission

played out hundreds of thousands of times each year. But it is more

than that. These routine encounters often serve as the gateway into the

criminal justice system. The NYPD made 50,300 marijuana arrests in

2010 alone, mostly of young men of color. As one report noted, these

marijuana arrests offer “training opportunities” for rookie police who

can practice on ghetto kids while earning overtime.112 These arrests

serve another purpose as well: they “are the most effective way for the

T H E C O L O R O F J U S T I C E 1 7 1

NYPD to collect fingerprints, photographs and other information on

young people not yet entered into the criminal databases.”113 A simple

arrest for marijuana possession can show up on criminal databases as

“a drug arrest” without specifying the substance or the charge, and

without clarifying even whether the person was convicted. These data-

bases are then used by police and prosecutors, as well as by employers

and housing officials—an electronic record that will haunt many for

life. More than 353,000 people were arrested and jailed by the NYPD

between 1997 and 2006 for simple possession of small amounts of mar-

ijuana, with blacks five times more likely to be arrested than whites.114

In Los Angeles, mass stops of young African American men and boys

resulted in the creation of a database containing the names, addresses,

and other biographical information of the overwhelming majority of

young black men in the entire city. The LAPD justified its database as

a tool for tracking gang or “gang-related” activity. However, the crite-

rion for inclusion in the database is notoriously vague and discrimina-

tory. Having a relative or friend in a gang and wearing baggy jeans is

enough to put youth on what the ACLU calls a Black List. In Denver,

displaying any two of a list of attributes—including slang, “clothing of

a particular color,” pagers, hairstyles, or jewelry—earns youth a spot

in the Denver Police’s gang database. In 1992, citizen activism led to an

investigation, which revealed that eight out of every ten people of color

in the entire city were on the list of criminal suspects.115

The End of an Era

The litigation that swept the nation in the 1990s challenging racial

profiling practices has nearly vanished. The news stories about people

being stopped and searched on their way to church or work or school

have faded from the evening news. This is not because the problem

has been solved or because the experience of being stopped, interro-

gated, and searched on the basis of race has become less humiliating,

1 7 2 T H E N E W J I M   C R O W

alienating, or demoralizing as time has gone by. The lawsuits have

disappeared because, in a little noticed case called Alexander v. San-

doval, decided in 2001, the Supreme Court eliminated the last remain-

ing avenue available for challenging racial bias in the criminal justice

system.116

Sandoval was not, on its face, even about criminal justice. It was a

case challenging the Alabama Department of Public Safety’s decision

to administer state driver’s license examinations only in English. The

plaintiffs argued that the department’s policy violated Title VI of the

Civil Rights Act of 1964 and its implementing regulations, because

the policy had the effect of subjecting non-English speakers to dis-

crimination based on their national origin. The Supreme Court did not

reach the merits of the case, ruling instead that the plaintiffs lacked

the legal right even to file the lawsuit. It concluded that Title VI does

not provide a “private right of action” to ordinary citizens and civil

rights groups; meaning that victims of discrimination can no longer

sue under the law.

The Sandoval decision virtually wiped out racial profiling litiga-

tion nationwide. Nearly all of the cases alleging racial profiling in

drug-law enforcement were brought pursuant to Title VI of the Civil

Rights Act of 1964 and its implementing regulations. Title VI prohib-

its federally funded programs or activities from discriminating on the

basis of race, and the regulations employ a “disparate impact test” for

discrimination—meaning that plaintiffs could prevail in claims of

race discrimination without proving discriminatory intent. Under the

regulations, a federally funded law enforcement program or activity is

unlawful if it has a racially discriminatory impact and if that impact

cannot be justified by law enforcement necessity. Because nearly all

law enforcement agencies receive federal funding in the drug war,

and because drug war tactics—such as pretext stops and consent

searches—have a grossly discriminatory impact and are largely inef-

T H E C O L O R O F J U S T I C E 1 7 3

fective, plaintiffs were able to argue persuasively that the tactics could

not be justified by law enforcement necessity.

In 1999, for example, the ACLU of Northern California filed a class

action lawsuit against the California Highway Patrol (CHP), alleging

that its highway drug interdiction program violated Title VI of the Civil

Rights Act because it relied heavily on discretionary pretext stops and

consent searches that are employed overwhelmingly against African

American and Latino motorists. During the course of the litigation,

the CHP produced data that showed African Americans were twice as

likely, and Latinos three times as likely, to be stopped and searched

by its officers as were whites. The data further showed that consent

searches were ineffective; only a tiny percentage of the discriminatory

searches resulted in the discovery of drugs or other contraband, yet

thousands of black and brown motorists were subjected to baseless

interrogations, searches, and seizures as a result of having committed

a minor traffic violation. The CHP entered into a consent decree that

provided for a three-year moratorium on consent searches and pre-

text stops statewide and the collection of comprehensive data on the

race and ethnicity of motorists stopped and searched by the police, so

that it would be possible to determine whether discriminatory prac-

tices were continuing. Similar results were obtained in New Jersey, as

a result of landmark litigation filed against the New Jersey State Police.

After Sandoval, these cases can no longer be brought under Title VI

by private litigants. Only the federal government can sue to enforce

Title VI’s antidiscrimination provisions— something it has neither the

inclination nor the capacity to do in most racial profiling cases due to

its limited resources and institutional reluctance to antagonize local

law enforcement. Since the War on Drugs, private litigants represented

by organizations such as the ACLU have been at the forefront of racial

profiling litigation. Those days, however, have come to an end. The

racial profiling cases that swept the nation in the 1990s may well be

1 74 T H E N E W J I M   C R O W

the last wave of litigation challenging racial bias in the criminal justice

system that we see for a very long time.

The Supreme Court has now closed the courthouse doors to claims

of racial bias at every stage of the criminal justice process, from stops

and searches to plea bargaining and sentencing. The system of mass

incarceration is now, for all practical purposes, thoroughly immunized

from claims of racial bias. Staggering racial disparities in the drug war

continue but rarely make the news. One recent development that did

make news was President Obama’s decision to sign legislation reduc-

ing the hundred-to-one disparity in sentencing for crack versus pow-

der cocaine to eighteen to one, a small step in the right direction.117

Under the new law, it takes 28 grams of crack cocaine to net a five-year

mandatory minimum sentence, while it still takes selling 500 grams

of powdered cocaine to net the same sentence. There should be no

disparity—the ratio should be one-to-one. But that disparity is just the

tip of the iceberg. As noted in chapter 2, this system depends primar-

ily on the prison label, not prison time. What matters most is who gets

swept into this system of control and then ushered into an undercaste.

The legal rules adopted by the Supreme Court guarantee that those

who find themselves locked up and permanently locked out due to the

drug war are overwhelmingly black and brown.

A heavy and cruel hand has been laid upon us. As a people, we feel our-

selves to be not only deeply injured, but grossly misunderstood. Our

white countrymen do not know us. They are strangers to our charac-

ter, ignorant of our capacity, oblivious to our history and progress, and

are misinformed as to the principles and ideas that control and guide

us, as a people. The great mass of American citizens estimates us as

being a characterless and purposeless people; and hence we hold up

our heads, if at all, against the withering influence of a nation’s scorn

and contempt.1

—Frederick Douglass, in a statement on behalf of delegates to the

National Colored Convention held in Rochester, New York, in July

1853

When Frederick Douglass and the other delegates to the National Colored Convention converged in Rochester, New York, in the summer of 1853 to discuss the condition, status, and future of “coloreds”

(as they were called then), they decried the stigma of race—the condem-

nation and scorn heaped upon them for no reason other than the color

of their skin. Most of the delegates were freed slaves, though the young-

er ones may have been born free. Northern emancipation was complete,

4 T he C r ue l   H a n d

1 7 6 T H E N E W J I M   C R O W

but freedom remained elusive. Blacks were finally free from the formal

control of their owners, but they were not full citizens—they could not

vote, they were subject to legal discrimination, and at any moment,

Southern plantation owners could capture them on the street and whisk

them back to slavery. Although Northern slavery had been abolished,

every black person was still presumed a slave—by law—and could not

testify or introduce evidence in court. Thus if a Southern plantation

owner said you were a slave, you were—unless a white person inter-

ceded in a court of law on your behalf and testified that you were right-

fully free. Slavery may have died, but for thousands of blacks, the badge

of slavery lived on.

Today a criminal freed from prison has scarcely more rights,

and arguably less respect, than a freed slave or a black person liv-

ing “free” in Mississippi at the height of Jim Crow. Those released

from prison on parole can be stopped and searched by the police

for any reason—or no reason at all—and returned to prison for the

most minor of infractions, such as failing to attend a meeting with a

parole officer. Even when released from the system’s formal control,

the stigma of criminality lingers. Police supervision, monitoring, and

harassment are facts of life not only for all those labeled criminals,

but for all those who “look like” criminals. Lynch mobs may be long

gone, but the threat of police violence is ever present. A wrong move

or sudden gesture could mean massive retaliation by the police. A

wallet could be mistaken for a gun. The “whites only” signs may be

gone, but new signs have gone up—notices placed in job applica-

tions, rental agreements, loan applications, forms for welfare ben-

efits, school applications, and petitions for licenses, informing the

general public that “felons” are not wanted here. A criminal record

today authorizes precisely the forms of discrimination we supposed-

ly left behind—discrimination in employment, housing, education,

public benefits, and jury service. Those labeled criminals can even be

denied the right to vote.

Criminals, it turns out, are the one social group in America we

T H E C R U E L   H A N D 1 7 7

have permission to hate. In “colorblind” America, criminals are the

new whipping boys. They are entitled to no respect and little mor-

al concern. Like the “coloreds” in the years following emancipation,

criminals today are deemed a characterless and purposeless people,

deserving of our collective scorn and contempt. When we say someone

was “treated like a criminal,” what we mean to say is that he or she

was treated as less than human, like a shameful creature. Hundreds of

years ago, our nation put those considered less than human in shack-

les; less than one hundred years ago, we relegated them to the other

side of town; today we put them in cages. Once released, they find that

a heavy and cruel hand has been laid upon them.

Brave New World

One might imagine that a criminal defendant, when brought before the

judge—or when meeting with his attorney for the first time—would

be told of the consequences of a guilty plea or conviction. He would be

told that, if he pleads guilty to a felony, he will be deemed “unfit” for

jury service and automatically excluded from juries for the rest of his

life.2 He would also be told that he could be denied the right to vote.

In a country that preaches the virtues of democracy, one could rea-

sonably assume that being stripped of basic political rights would be

treated by judges and court personnel as a serious matter indeed. Not

so. When a defendant pleads guilty to a minor drug offense, nobody

will likely tell him that he may be permanently forfeiting his right to

vote as well as his right to serve on a jury—two of the most fundamen-

tal rights in any modern democracy.

He will also be told little or nothing about the parallel universe he

is about to enter, one that promises a form of punishment that is often

more difficult to bear than prison time: a lifetime of shame, contempt,

scorn, and exclusion. In this hidden world, discrimination is per-

fectly legal. As Jeremy Travis has observed, “In this brave new world,

punishment for the original offense is no longer enough; one’s debt to

1 7 8 T H E N E W J I M   C R O W

society is never paid.”3 Other commentators liken the prison label to

“the mark of Cain” and characterize the perpetual nature of the sanc-

tion as “internal exile.” 4 Myriad laws, rules, and regulations operate

to discriminate against people with criminal records and effectively

prevent their reintegration into the mainstream society and economy.

These restrictions amount to a form of “civic death” and send the

unequivocal message that “they” are no longer part of “us.”

Once labeled a felon, the badge of inferiority remains with you for

the rest of your life, relegating you to a permanent second-class status.

Consider, for example, the harsh reality facing someone who pleads

guilty to a first-time offense, felony possession of marijuana. Even if

the defendant manages to avoid prison time by accepting a “generous”

plea deal, he may discover that the punishment that awaits him outside

the courthouse doors is far more severe and debilitating than what he

might have encountered in prison. A task force of the American Bar

Association described the bleak reality facing someone convicted of a

petty drug offense this way:

[The] offender may be sentenced to a term of probation,

community service, and court costs. Unbeknownst to this

offender, and perhaps any other actor in the sentencing

process, as a result of his conviction he may be ineligible

for many federally-funded health and welfare benefits, food

stamps, public housing, and federal educational assistance.

His driver’s license may be automatically suspended, and

he may no longer qualify for certain employment and pro-

fessional licenses. If he is convicted of another crime he

may be subject to imprisonment as a repeat offender. He

will not be permitted to enlist in the military, or possess a

firearm, or obtain a federal security clearance. If a citizen,

he may lose the right to vote; if not, he becomes immedi-

ately deportable.5

T H E C R U E L   H A N D 1 7 9

Despite the brutal, debilitating impact of these “collateral conse-

quences” on the lives of those convicted of crimes, courts have gener-

ally declined to find that such sanctions are actually “punishment” for

constitutional purposes. As a result, judges are not required to inform

criminal defendants of some of the most important rights they are

forfeiting when they plead guilty to a felony. In fact, judges, prosecu-

tors, and defense attorneys may not even be aware of the full range of

collateral consequences for a felony conviction. Yet these civil penal-

ties, although not considered punishment by our courts, often make it

virtually impossible for people who have been convicted of crimes to

integrate into the mainstream society and economy upon release. Far

from collateral, these sanctions can be the most damaging and painful

aspect of a criminal conviction. Collectively, these sanctions send the

strong message that, now that you have been labeled, you are no longer

wanted. You are no longer part of “us,” the deserving. Unable to drive,

get a job, find housing, or even qualify for public benefits, many people

with criminal records lose their children, their dignity, and eventually

their freedom— landing back in jail after failing to play by rules that

seem hopelessly stacked against them.

The churning of African Americans in and out of prisons today is

hardly surprising, given the strong message that is sent to them that

they are not wanted in mainstream society. In Frederick Douglass’s

words, “Men are so constituted that they derive their conviction of

their own possibilities largely from the estimate formed of them by

others. If nothing is expected of a people, that people will find it dif-

ficult to contradict that expectation.” 6 More than a hundred years later,

a similar argument was made by a woman contemplating her eventual

release into a society that had constructed a brand-new legal regime

designed to keep her locked out, fifty years after the demise of Jim

Crow. “Right now I’m in prison,” she said. “Like society kicked me

out. They’re like, ‘Okay, the criminal element, we don’t want them in

society, we’re going to put them in prisons.’ Okay, but once I get out,

1 8 0 T H E N E W J I M   C R O W

then what do you do? What do you do with all these millions of people

that have been in prison and been released? I mean, do you accept

them back? Or do you keep them as outcasts? And if you keep them as

outcasts, how do you expect them to act?”7

Remarkably, the overwhelming majority of people branded crimi-

nals and felons struggle mightily to play by the rules and to succeed in

a society seemingly hell-bent on excluding them. Like their forbears,

they do their best to survive, even thrive—against all odds.

No Place Like Home

The first question on the minds of many people released from prison

as they take their first steps outside the prison gates is where will they

sleep that night. Some have families eagerly awaiting them—families

who are willing to let their newly released relative sleep on the couch,

floor, or extra bed indefinitely. Most, however, desperately need to find

a place to live—if not immediately, at least soon. After several days,

weeks, or months of sleeping in your aunt’s basement or on a friend’s

couch, a time comes when you are expected to fend for yourself. Figur-

ing out how, exactly, to do that is no easy task, however, when your fel-

ony record operates to bar you from any public housing assistance. As

one young man with a felony conviction explained in exasperation, “I

asked for an application for Section 8. They asked me if I had a felony.

I said, ‘yes.’ . . . They said, ‘Well, then, this application isn’t for you.’”8

This young man had just hit his first brick wall coming out of pris-

on. Housing discrimination against people branded felons (as well as

suspected “criminals”) is perfectly legal. During Jim Crow, it was legal

to deny housing on the basis of race, through restrictive covenants

and other exclusionary practices. Today, discrimination against people

with criminal records and their families is routine among public and

private landlords alike. Rather than racially restrictive covenants, we

have restrictive lease agreements, barring the new “undesirables.”

T H E C R U E L   H A N D 1 8 1

The Anti-Drug Abuse Act of 1988, passed by Congress as part of the

War on Drugs, called for strict lease enforcement and eviction of pub-

lic housing tenants who engage in criminal activity. The act granted

public housing agencies the authority to use leases to evict any ten-

ant, household member, or guest engaged in any criminal activity on

or near public housing premises. In 1996, President Clinton, in an

effort to bolster his “tough on crime” credentials, declared that public

housing agencies should exercise no discretion when a tenant or guest

engages in criminal activity, particularly if it is drug- related. In his

1996 State of the Union address, he proposed “One Strike and You’re

Out” legislation, which strengthened eviction rules and strongly urged

that people with drug convictions be automatically excluded from

public housing based on their criminal records. He later declared, “If

you break the law, you no longer have a home in public housing, one

strike and you’re out. That should be the law everywhere in Ameri-

ca.”9 In its final form, the act, together with the Quality Housing and

Work Responsibility Act of 1998, not only authorized public hous-

ing agencies to exclude automatically (and evict) people with drug

convictions and felonies; it also allowed agencies to bar applicants

believed to be using illegal drugs or abusing alcohol—whether or not

they had been convicted of a crime. These decisions can be appealed,

but appeals are rarely successful without an attorney—a luxury most

public housing applicants cannot afford.

In response to the new legislation and prodding by President Clin-

ton, the Housing and Urban Development Department (HUD) devel-

oped guidelines to press public housing agencies to “evict drug dealers

and other criminals” and “screen tenants for criminal records.”10 HUD’s

“One Strike Guide” calls on housing agencies to “take full advantage of

their authority to use stringent screening and eviction procedures.” It

also encourages housing authorities not only to screen all applicants’

criminal records, but to develop their own exclusion criteria. The

guide notes that agency ratings and funding are tied to whether they

1 8 2 T H E N E W J I M   C R O W

are “adopting and implementing effective applicant screening,” a clear

signal that agencies may be penalized for not cleaning house.11

Throughout the United States, public housing agencies have adopted

exclusionary policies that deny eligibility to applicants even with the

most minor criminal backgrounds. The crackdown inspired by the

War on Drugs has resulted in unprecedented punitiveness, as housing

officials began exercising their discretion to deny poor people access

to public housing for virtually any crime. “Just about any offense will

do, even if it bears scant relation to the likelihood the applicant will

be a good tenant.”12

The consequences for real families can be devastating. Without

housing, people can lose their children. Take for example, the forty-

two-year-old African American man who applied for public housing

for himself and his three children who were living with him at the

time.13 He was denied because of an earlier drug possession charge for

which he had pleaded guilty and served thirty days in jail. Of course,

the odds that he would have been convicted of drug possession would

have been extremely low if he were white. But as an African American,

he was not only targeted by the drug war but then denied access to

housing because of his conviction. Since being denied housing, he has

lost custody of his children and is homeless. Many nights he sleeps

outside on the streets. Stiff punishment, indeed, for a minor drug

offense—especially for his children, who are innocent of any crime.

Remarkably, under current law, an actual conviction or finding of

a formal violation is not necessary to trigger exclusion. Public hous-

ing officials are free to reject applicants simply on the basis of arrests,

regardless of whether they result in convictions or fines. Because Afri-

can Americans and Latinos are targeted by police in the War on Drugs,

it is far more likely that they will be arrested for minor, nonviolent

crimes. Accordingly, HUD policies excluding people from housing

assistance based on arrests as well as convictions guarantee highly

discriminatory results.

T H E C R U E L   H A N D 1 8 3

Perhaps no aspect of the HUD regulatory regime has been as con-

troversial, however, as the “no- fault” clause contained in every public

housing lease. Public housing tenants are required to do far more than

simply pay their rent on time, keep the noise down, and make sure

their homes are kept in good condition. The “One Strike and You’re

Out” policy requires every public housing lease to stipulate that if the

tenant, or any member of the tenant’s household, or any guest of the

tenant, engages in any drug- related or other criminal activity on or off

the premises, the tenancy will be terminated. Prior to the adoption

of this policy, it was generally understood that a tenant could not be

evicted unless he or she had some knowledge of or participation in

alleged criminal activity. Accordingly, in Rucker v. Davis, the Ninth

Circuit Court of Appeals struck down the “no- fault” clause, on the

grounds that the eviction of innocent tenants—who were not accused

or even aware of the alleged criminal activity—was inconsistent with

the legislative scheme.14

The U.S. Supreme Court reversed.15 The Court ruled in 2002 that,

under federal law, public housing tenants can be evicted regardless

of whether they had knowledge of or participated in alleged criminal

activity. According to the Court, William Lee and Barbara Hill were

rightfully evicted after their grandsons were charged with smoking

marijuana in a parking lot near their apartments. Herman Walker

was properly evicted as well, after police found cocaine on his care-

giver. And Perlie Rucker was rightly evicted following the arrest of

her daughter for possession of cocaine a few blocks from home. The

Court ruled these tenants could be held civilly liable for the nonviolent

behavior of their children and caregivers. They could be tossed out of

public housing due to no fault of their own.

In the abstract, policies barring or evicting people who are somehow

associated with criminal activity may seem like a reasonable approach

to dealing with crime in public housing, particularly when crime has

gotten out of control. Desperate times call for desperate measures, it is

1 8 4 T H E N E W J I M   C R O W

often said. The problem, however, is twofold: these vulnerable families

have nowhere to go, and the impact is inevitably discriminatory. People

who are not poor and who are not dependent upon public assistance for

housing need not fear that, if their son, daughter, caregiver, or relative

is caught with some marijuana at school or shoplifts from a drugstore,

they will find themselves suddenly evicted—homeless. But for count-

less poor people—particularly racial minorities who disproportionate-

ly rely on public assistance—that possibility looms large. As a result,

many families are reluctant to allow their relatives—particularly

those who are recently released from prison—to stay with them, even

temporarily.

No one knows exactly how many people are excluded from public

housing because of criminal records, or even the number of people with

criminal records who would be ineligible if they applied. There is no

national data available. We do know, however, that roughly 65 million

people have criminal records, including tens of millions of Americans

who have been arrested but never convicted of any offense, or convict-

ed only of minor misdemeanors, and they too are routinely excluded

from public housing. What happens to these people denied housing

assistance or evicted from their homes? Where do they go? Thousands

of them become homeless. A study conducted by the McCormick Insti-

tute of Public Affairs found that nearly a quarter of guests in homeless

shelters had been incarcerated within the previous year—people who

were unable to find somewhere to live after release from prison walls.

Similarly, a California study reported that an estimated 30 to 50 per-

cent of individuals under parole supervision in San Francisco and

Los Angeles were homeless.16 Access to decent, stable, and affordable

housing is a basic human right, and it also increases substantially the

likelihood a person with a past criminal record will obtain and retain

employment and remain drug- and crime-free. Research conducted

by the Corporation for Supportive Housing in New York State shows

that the use of state prisons and city jails dropped by 74 percent and

T H E C R U E L   H A N D 1 8 5

40 percent respectively when people with past criminal records were

provided with supportive housing.17

People returning “home” from prison are typically the poorest of

the poor, lacking the ability to pay for private housing and routinely

denied public housing assistance—the type of assistance which could

provide some much-needed stability in their lives. For them, “going

home” is more a figure of speech than a realistic option. More than

650,000 people are released from prison each year, and for many, find-

ing a new home appears next to impossible, not just in the short term,

but for the rest of their lives. As a forty-one-year-old African American

mother remarked after being denied housing because of a single arrest

four years prior to her application, “I’m trying to do the right thing; I

deserve a chance. Even if I was the worst criminal, I deserve a chance.

Everybody deserves a chance.”18

Boxed In

Aside from figuring out where to sleep, nothing is more worrisome for

people leaving prison than figuring out where to work. In fact, a study

by the Vera Institute found that during the first month after release

from prison, people consistently were more preoccupied with finding

work than anything else.19 Some of the pressure to find work comes

directly from the criminal justice system. According to one survey of

state parole agencies, forty of the fifty-one jurisdictions surveyed (the

fifty states and the District of Columbia) required parolees to “maintain

gainful employment.”20 Failure to do so could mean more prison time.

Even beyond the need to comply with the conditions of parole,

employment satisfies a more basic human need—the fundamental

need to be self sufficient, to contribute, to support one’s family, and to

add value to society at large. Finding a job allows a person to establish

a positive role in the community, develop a healthy self-image, and

keep a distance from negative influences and opportunities for illegal

1 8 6 T H E N E W J I M   C R O W

behavior. Work is deemed so fundamental to human existence in many

countries around the world that it is regarded as a basic human right.

Deprivation of work, particularly among men, is strongly associated

with depression and violence.

Landing a job after release from prison is no small feat. “I’ve watched

the discrimination and experienced it firsthand when you have to

check the box,” says Susan Burton, a formerly incarcerated woman

who has dedicated her life to providing women released from prison

the support necessary to reestablish themselves in the workforce. The

“box” she refers to is the question on job applications in which appli-

cants are asked to check “yes” or “no” if they have ever been convicted

of a crime. “It’s not only [on] job [applications],” Burton explains. “It’s

on housing. It’s on a school application. It’s on welfare applications. It’s

everywhere you turn.”21

Nearly every state allows private employers to discriminate on the

basis of past criminal convictions. In fact, employers in most states

can deny jobs to people who were arrested but never convicted of any

crime. Only ten states prohibit all employers and licensing agencies

from considering arrests, and three states prohibit some employers

and occupational and licensing agencies from doing so.22 Employers in

a growing number of professions are barred by state licensing agencies

from hiring people with a wide range of criminal convictions, even

convictions unrelated to the job or license sought.23

The result of these discriminatory laws is that virtually every job

application, whether for dog catcher, bus driver, Burger King cashier,

or accountant, asks people with criminal records to “check the box.”

Most people with criminal convictions have difficulty even getting an

interview after they have checked the box, because most employers

are unwilling to consider hiring a self-identified “criminal.” One sur-

vey showed that although 90 percent of employers say they are willing

to consider filling their most recent job vacancy with a welfare recipi-

ent, only 40 percent are willing to consider doing so with someone

T H E C R U E L   H A N D 1 8 7

who had been convicted of a crime.24 Similarly, a 2002 survey of 122

California employers revealed that although most employers would

consider hiring someone convicted of a misdemeanor offense, the

numbers dropped dramatically for those convicted of felonies. Less

than a quarter of employers were willing to consider hiring someone

convicted of a drug-related felony; the number plummeted to 7 per-

cent for a property-related felony, and less than 1 percent for a violent

felony.25 Even those who hope to be self-employed—for example, as

a barber, manicurist, gardener, or counselor—may discover that they

are denied professional licenses on the grounds of past arrests or

convictions, even if their offenses have nothing at all to do with their

ability to perform well in their chosen profession.

For most people coming out of prison, a criminal conviction adds

to the barriers they face upon release. About 70 percent of people

with criminal records did not complete high school, and according

to at least one study, about half are functionally illiterate.26 Many are

tracked for prison at early ages, labeled as criminals in their teen

years, and then shuttled from their decrepit, underfunded inner-city

schools to brand-new, high-tech prisons. The communities and

schools from which they come fail to prepare them for the workforce,

and once they have been labeled criminals, their job prospects are